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BANKS AND SPECIALISED
DEPOSIT-TAKING INSTITUTIONS ACT, 2016 ( ACT930)
ARRANGEMENT OF SECTIONS
Section
1.Application
of this Act
2.Application
of Act 179
3.Role
of the Bank of Ghana
Licensing of Banks and Specialised Deposit- Taking
Institutions
4 Deposit-taking business
5 Licensing authority of Bank of Ghana
6 Requirement of a licence
7 Application for licence
8 Types of licences
9 Pre-requisites for a licence
10 Provisional approval
11 Invitation to public to subscribe to shares
12 Final approval and issuance of banking or
specialised deposit taking institution licence
13 Non transferability or assignment of licence
14 Conditions for issuance of licence
15 Refusal of licence
16 Revocation of licence
17 Central Register
18 Permissible activities
19 Restrictions on commercial, agricultural or
industrial activities and immovable property
20 Powers regarding unauthorised deposit-taking
business
21 Repayment of moneys by unauthorised persons
22 Penalties for unauthorised deposit-taking
business
23 Use of the word "bank"
24 Display of licence
25 Places of business to be licensed
26 Representative offices
27 Change of Company Regulations and other
instruments of banks or specialised deposit-taking
institutions
Capital and Reserves
28.Minimum
paid-up capital
29.Capital
adequacy and other capital requirements
30.Additional
capital in respect of special risks
31.Capital
adequacy requirements on a consolidated basis
32.Notifying
non-compliance with capital requirements
33.Penalty
for non-compliance with capital requirements
34.Reserve
Fund
35.Restrictions
on declaration and payment of dividend
Liquidity
36.Liquidity
requirements
37.Maintenance
of liquid assets on a consolidated basis
38.Additional
liquidity requirement for additional risk
39.Notification
of non-compliance with minimum liquidity
requirements
40.Penalties
for non-compliance with liquidity requirements
41.Maintenance
of Net Open Position
Ownership and Control
42.Reporting
of group structures
43.Registration
requirement for financial holding companies
44.Application
for registration
45.Display
of certificate of registration
46.Restriction
on activities of financial holding companies
47.Power
to require restructuring of ownership
48.Withdrawal
of registration by Bank of Ghana
49.Transfer
of shares affecting significant shareholdings
50.Disapproval
of transfer of shares
51.Restriction
of cap on ownership
52.Sale
of businesses, mergers, amalgamations and
reconstructions
53.Consideration
of application
54.Review
of applications for approval of sale of businesses,
mergers, amalgamations, or reconstructions
55.Penalties
for non-compliance
Corporate governance
56.Duty
of directors to report
57.Disqualification
of a director and key management personnel
58.Disclosure
of interest
59.Intervention
of the Bank of Ghana in appointments
Restrictions on
Lending and Investments
61.Prohibition
of an advance against security of own shares
62.Limits
on financial exposure
63.Financial
exposure limits on a consolidated basis
64.Restrictions
on transactions with an affiliate
65.Restriction
on purchase or transfer of certain assets from an
affiliate and insider
66.Restrictions
on inter-institutional placements and loans
67.Restrictions
on financial exposures to an insider
68.Limits
on financial exposures to related parties on a
consolidated basis
69.Restrictions
on lending to staff
70.Requirements
for lending to insiders and their related interests
71.Restriction
on establishment of a subsidiary company
72.Limits
on investment by banks or specialised deposit-take
institutions in respect of a subsidiary company
73.Limits
on investment by banks or specialised deposit taking
institutions in respect of non-subsidiary
institutions
74.Reporting
of exposures
75.Asset
classification, provisioning and write-offs
76.Limits
on a foreign exchange business
77.Powers
to impose stricter prudential limits
Accounts and Audit
78.Guidelines
on accounting standards and disclosures in financial
statements
79.Accounting
records
80.Financial
statements
81.Appointment
of auditors
82.Power
of the Bank of Ghana to appoint auditors
83.Remuneration
of auditor
84.Right
of auditor to access information
85.Report
of auditor
86.Meetings
with auditors
87.Duties
of auditor to the Bank of Ghana
88.Special
audit and additional information
89.Termination
of appointment of auditor
90.Display
of financial statements
Powers of Supervision and Control
91.Powers
of regulation and supervision
92.Directives
93.Information
and periodic returns
94.Examination
95.Investigation
or scrutiny
96.Power
of examiners
97.Taking
custody of records
98.Verification
of information
99.Examination
reports
100.Follow-up
action on examination and other supervisory reports
101.Appointment
of advisor
102.Remedial
measures for banks, specialised deposit-taking
institutions or financial holding companies
103.Remedial
measures for directors, key management personnel,
and significant shareholders
104.Prompt
corrective action for adequately capitalised banks,
specialised deposit-taking institutions, or
financial holding companies suffering material
losses
105.Prompt
corrective action for undercapitalised banks,
specialised deposit-taking institutions or financial
holding companies
106.Prompt
corrective action for significantly undercapitalised
banks, specialised deposit-taking institutions or
financial holding companies
Official Administration
107.Grounds
for appointing an official administrator
108.General
powers of the official administrator
109.Oversight
of official administrator by the Bank of Ghana
110.Suspension
of dividends
111.Moratorium
and effect of official administration on proceedings
112.Suspension
of rights of termination
113.Control
of the bank or specialised deposit-taking
institution by official administrator
114.Inventory
and plan of action to resolve the bank or
specialised deposit-taking institution
115.Capital
increase by existing shareholders
116.Recapitalisation
by new shareholders
117.Mergers,
sales and other restructurings
118.Mandatory
restructuring of liabilities
119.Removal
of directors and key management personnel
120.Misconduct
by significant shareholders, directors, key
management personnel and others
121.Expenses
of the official administration
122.Termination
of official administration
Receivership and Liquidation
123.Mandatory
revocation of licence and initiation of receivership
124.Qualifications
and compensation for receiver
125.Notice
and registration of receivership
126.Oversight
of Bank of Ghana over receiver
127.General
powers of receiver
128.Effects
of receivership
129.Control
of the bank or specialised deposit-taking
institution by receiver
130.Inventory
of assets and new financial position
131.Repudiation
of contracts
132.Setting
aside of pre-receivership transactions
133.Determination
of claims
134.Claims
relating to eligible financial contracts
135.Priorities
in payment of claims
136.Termination
of receivership and final reporting to the Bank of
Ghana
137.Miscellaneous
receivership provisions
138.Relationship
with other enactments
139.Voluntary
winding-up
Miscellaneous Provisions
140.Review
of decisions of the Bank of Ghana on licensing
141.Review
of decision of Bank of Ghana on official
administration,
liquidation and receivership by arbitration
142.Review
of decisions through arbitration
143 . Unclaimed balances
143.Prohibition
of floating charge
144.Confidentiality
obligations of officials and employees of the Bank
of Ghana
146.Secrecy
of customer information
147.Agreements
for exchange of information
148.Disclosure
of information relating to banks or specialised
deposit-
taking institutions or financial holding companies
149.Submission
of reports on trend and progress
150.Protection
from liability and indemnification
151.Collection
of civil penalties
152.Prosecution
of offences and penalties
153.Joinder
of offences
154.General
penalty
155.Regulations
156.Interpretation
157.Repeal
and savings
158.Validity
of existing licence
159.Transitional
provisions
160.Moratorium
for transition
SCHEDULES
FIRST SCHEDULE
Oath of Confidentiality
SECOND SCHEDULE
Oath of Confidentiality
REPUBLIC OF GHANA
ACT
OF THE PARLIAMENT OF THE REPUBLIC OF GHANA
ENTITLED
BANKS AND SPECIALISED DEPOSIT-TAKING INSTITUTIONS
ACT, 2016
An ACT to amend and consolidate the laws relating to
deposit-taking; to regulate institutions which carry
on deposit-taking business, and to provide for
related matters.
DATE OF AsSENT:
PASSED by Parliament and assented to by the
President:
Preliminary Matters
Application of
this Act
1. (1) This Act applies to
(a)
banks,
(b)
specialised deposit-taking institutions,
(c)
financial holding companies, and
(d)
affiliates of banks, specialised deposit-taking
institutions and financial holding companies.
(2) This Act does not apply to credit unions which
are subject to licensing and supervision under the
Non-Bank Financial Institutions Act, 2008 (Act 774).
Application of Act 179
2. (1) This Act shall be read together with the
Companies Act, 1963 (Act 179) and shall not except
as otherwise provided in this Act derogate from the
provisions of that Act.
(2) Where there is a conflict or inconsistency
between the Companies Act, 1963 (Act 179) and this
Act, this Act shall prevail.
Role of the Bank of Ghana
3. (1) The Bank of Ghana shall have overall
supervisory and regulatory authority in all matters
relating to deposit-taking business.
(2) For the purpose of subsection (1), the Bank of
Ghana is responsible for
(a)
promoting the safety and soundness ofbanks and
specialised deposit-taking institutions;
(b)
considering and proposing reforms of enactments
relating to deposit-taking business;
(c)
ensuring the soundness and stability of the
financial system and the protection of depositors in
the country through the regulation and supervision
of financial institutions;
(d)
developing appropriate consumer protection measures
to ensure that the interests of clients of the banks
and the specialised deposit-taking institutions are
adequately protected; and
(e)
dealing with unlawful or improper practices of banks
and specialised deposit-taking institutions.
(3) The supervisory functions of the Bank of Ghana
under this Act shall be carried out through the
supervisory structures established by the Bank of
Ghana. ~
(4) The Bank of Ghana may authorise the heads of the
supervisory structures or any other person to
exercise a power and do an act that the Bank of
Ghana considers appropriate in order to discharge
the responsi- bilities of the Bank of Ghana under
this Act.
(5) In accordance with the Bank of Ghana Act, 2002,
(Act 612), the Bank of Ghana may appoint an
authorised agent to carry out specified activities
of a particular tier or category or class of
specialised deposit- taking institutions on behalf
of the Bank of Ghana.
(6) For the purpose of this section, "authorised
agent" includes an apex body, network, industrial
association, self-regulatory organisation or any
other person recongnised by the Bank of Ghana.
Licensing of Banks and Specialised Deposit- Taking
Institutions
Deposit-taking business
4.
(1) Subject to this Act, a person shall not carry on
a deposit-taking business in or from within the
country unless that person is a body corporate
formed under the laws of this country.
(2) A person that is not a body corporate formed
under the laws of the country may, with the prior
written approval of the Bank of Ghana, carry out a
deposit-taking business in or from within the
country.
(3) A person shall not propose to be a shareholder
of a deposit- taking microfinance institution unless
that person is a citizen.
(4) The Bank of Ghana shall issue directives to
govern the operations of persons exempted under
subsection (2).
(5) For the purpose of this Act, 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.
Licensing authority of Bank of Ghana
5.
The Bank of Ghana shall have the sole responsibility
for
(a)
the issuance of licences to banks and specialised
deposit- taking institutions;
(b)
granting approval to foreign banks with respect to
the establishment of representative offices; and
(c)
the registration of financial holding companies.
Requirement of a licence
6.
(1) A person shall not accept a deposit from the
general public or carry on a deposit-taking business
in or from within the country without a licence
issued in accordance with this Act.
(2) The Bank of Ghana may prescribe classes of
liabilities that constitute deposits.
(3) Where it is uncertain in a particular case
whether a particular liability of a bank or
specialised deposit-taking institution is to be
regarded as a deposit, the Bank of Ghana shall
determine whether that liability is a deposit.
(4) A person shall not use a licence under this Act
for a purpose other than that for which the licence
is issued.
Application for licence
7.
(1) A person who seeks to carry on a deposit-taking
business shall apply in writing to the Bank of Ghana
for a licence.
(2) An application for a licence under subsection
(1) shall be accompanied with the following:
(a)
a certified true copy of the Company Regulations or
other relevant instrument relating to the proposed
bank or specialised deposit-taking institution under
which the
person proposing to carry on a deposit-taking
business was established;
(b)
the names, addresses, occupations, business and
professional history, certified financial positions,
and corporate affilia- tions of the significant
shareholders and the respective values of the
shares;
(c)
where the bank or specialised deposit-taking
institution is a member of a corporate group,
(i) a complete organisational structure including a
diagram of the group;
(ii) direct and indirect affiliates and associates
of the bank or specialised deposit-taking
institution, and
(iii) the nature of the relationship to the group;
(d)
the particulars of the proposed directors and key
management personnel concerned with the management
of the deposit- taking business, including
(i) their qualifications and experience,
(ii) business and professional history for the
preceding ten years or a longer period that the Bank
of Ghana may determine,
(iii) certified financial position,
(iv) business interests, and
(v) the performance of the business concerns under
their control or management;
(6) For the purpose of this section, "authorised
agent" includes an apex body, network, industrial
association, self-regulatory organisation or any
other person recongnised by the Bank of Ghana.
Licensing of Banks and Specialised Deposit- Taking
Institutions
Deposit
-taking business
4.
(1) Subject to this Act, a person shall not carry on
a deposit-taking business in or from within the
country unless that person is a body corporate
formed under the laws of this country.
(2) A person that is not a body corporate formed
under the laws of the country may, with the prior
written approval of the Bank of Ghana, carry out a
deposit-taking business in or from within the
country.
(3) A person shall not propose to be a shareholder
of a deposit- taking micro finance institution
unless that person is a citizen.
(4) The Bank of Ghana shall issue directives to
govern the opera- tions of persons exempted under
subsection (2).
(5) For the purpose of this Act, 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.
Licensing authority of Bank of Ghana
5.
The Bank of Ghana shall have the sole responsibility
for
(a)
the issuance of licences to banks and specialised
deposit- taking institutions;
(b)
granting approval to foreign banks with respect to
the establishment of representative offices; and
(c)
the registration of financial holding companies.
Requirement of a licence
6.
(1) A person shall not accept a deposit from the
general public or carry on a deposit-taking business
in or from within the country without a licence
issued in accordance with this Act.
(2) The Bank of Ghana may prescribe classes of
liabilities that constitute deposits.
(3) Where it is uncertain in a particular case
whether a particular liability of a bank or
specialised deposit-taking institution is to be
regarded as a deposit, the Bank of Ghana shall
determine whether that liability is a deposit.
(4) A person shall not use a licence under this Act
for a purpose other than that for which the licence
is issued.
Application for licence
7. (1) A person who seeks to carry on a
deposit-taking business shall apply in writing to
the Bank of Ghana for a licence.
(2) An application for a licence under subsection
(1) shall be accompanied with the following:
(a)
a certified true copy of the Company Regulations or
other relevant instrument relating to the proposed
bank or specialised deposit-taking institution under
which the person proposing to carry on a
deposit-taking business was established;
(b)
the names, addresses, occupations, business and
professional . history, certified financial
positions, and corporate affiliations of the
significant shareholders and the respective values
of the shares;
(c)
where the bank or specialised deposit-taking
institution is a member of a corporate group,
(i) a complete organisational structure including a
diagram of the group;
(ii) direct and indirect affiliates and associates
of the bank or specialised deposit-taking
institution, and
(iii) the nature of the relationship to the group;
(d)
the particulars of the proposed directors and key
management personnel concerned with the management
of the deposit- taking business, including
(i) their qualifications and experience,
(ii) business and professional history for the
preceding ten years or a longer period that the Bank
of Ghana may determine,
(iii) certified financial position,
(iv) business interests, and
(v) the performance of the business concerns under
their control or management;
(e)
feasibility report
including a business plan and financial projections
for the first five years and the area of activity
intended;
(f)
documentary evidence of the capital of the proposed
bank or specialised deposit-taking institution,
including the original sources of funds and any
other source of funds;
(g)
in the case of a foreign applicant
(i) an authenticated copy of the certificate of
incorporation and the Company Regulations or other
relevant instrument and by-laws or similar
documents, and
(ii) a written confirmation from the supervisory
authority in the country of incorporation of the
applicant or head office, if different, that the
supervisory authority has no objection to the
proposal of the applicant to carry on a
deposit-taking business in the country
and that that supervisory authority exercises global
consolidated supervision over that bank or
specia1ised deposit-taking institution;
(h)
a statement on measures and structures that the
applicant intends to adopt to ensure that business
is conducted in accordance with sound corporate
governance principles;
(i)
a statutory declaration for each proposed director,
key management personnel and significant shareholder
of the proposed bank or specialised deposit-taking
institution,
disclosing, where applicable,
(i) a conviction for an offence by a court of
competent jurisdiction,
(ii) a personal bankruptcy filing,
(iii) a disqualification from practising a
profession, or
(iv) a past or present involvement in a managerial
function of a body corporate or other undertaking
that is subject to insolvency or liquidation
proceedings;
(j)
the processing fee that the Bank of Ghana may by
notice specify; and
(k)
any other particulars that the Bank of Ghana may
require.
(3) An application for a licence shall indicate
clearly the type of licence that is being applied
for.
(4) The Bank of Ghana may, for the purpose of
verifying the particulars submitted under subsection
(2),
(a)
interview a promoter, proposed director or key
management personnel in the course of the
verification, and
(b)
inspect the books, records and premises intended for
use by the bank or specialised deposit-taking
institution.
(5) Where a document submitted to the Bank of Ghana
is not in the English language, the document shall
be accompanied with a certified translation in
English.
(6) The Bank of Ghana may require that information
supplied to the Bank of Ghana be verified, certified
or otherwise authenticated in the manner that the
Bank of Ghana may prescribe.
(7) The Bank of Ghana shall
(a)
within ten working days of the receipt of an
application acknowledge in writing the receipt of
the application; and
(b) within six months after the receipt of an
application communicate its decision in writing to
the applicant.
(8) Despite paragraph (b) of subsection (7), where
the Bank of Ghana is of the opinion that further
investigation or information is required to process
the application, the Bank of Ghana shall within a
reasonable period after the six month period
specified under paragraph
(b) of subsection (7), notify the applicant and
subsequently inform the applicant in writing of the
decision of the Bank of Ghana.
Types of licences
8. (1) A licence issued under this Act shall be
issued subject to the terms and conditions that the
Bank of Ghana may impose.
(2) The terms and conditions of a licence may be
stated in the notice of approval of a licence and
shall be considered to form part of the licence for
purposes of this Act.
(3) A licence shall be designated either as a
banking licence or a specialised deposit-taking
institution licence.
(4) A specialised deposit-taking institution
licence shall be issued to an applicant whose
primary activities are limited to deposit-taking
business.
(5) The name of a specialised deposit-taking
institution shall clearly designate which category
of specialised deposit-taking institution licence
that institution operates under, in accordance with
rules prescribed by the Bank of Ghana.
(6) For purposes of this Act, the Bank of Ghana
shall by notice published in the Gazette or
in at least two daily newspapers of national
circulation indicate the designation of a licence
issued to a company before the coming into force of
this Act.
Pre-requisites for a licence
9. The Bank of Ghana shall not issue a licence to an
applicant unless
the Bank of Ghana is satisfied that
(a)
the feasibility report submitted by the applicant
under section 7 is based on sound analysis under
reasonable assumptions;
(b)
the proposed directors and key management personnel
of the applicant are fit and proper persons;
(c)
the significant shareholders are suitable and the
ownership structure of the proposed bank or
specialised deposit- taking institution will not
hinder effective supervision, including supervision
on a consolidated basis;
(d)
the paid-up capital of the applicant is adequate and
the original sources of capital are acceptable and
do not include borrowed funds;
(e)
the arrangements for governance, including
accounting, risk management, and internal control
systems and records of the applicant are adequate;
(f)
the applicant is not a shell company; and
(g)
the applicant has complied with this Act, the
Regulations, directives, and other legally-binding
instruments made under this Act and any conditions
that the Bank of Ghana may impose.
Provisional approval
10.
(1) Without limiting section 9, the Bank of Ghana
may issue a provisional approval of a licence for a
subsidiary of a foreign bank or specialised
deposit-taking institution if the Bank of Ghana is
satisfied that
(a)
the foreign bank or specialised deposit-taking
institution is adequately supervised on a global
consolidated basis by the home country supervisor of
that bank or specialised deposit-taking institution,
and
(b)
arrangements for cooperation, coordination, and
information-sharing with the home country supervisor
are in place.
(2) The Bank of Ghana may issue a provisional
approval for a specified licence to an applicant on
the terms and conditions that the Bank of Ghana
considers appropriate, if the Bank of Ghana is
satisfied that
(a)
the applicant will carry on business with integrity,
prudence and the required professional competence;
(b)
the applicant has and will maintain an unimpaired
paid up capital as specified in section 28 and holds
a licence of the specified type as required; and
(c)
where the applicant is a subsidiary of a foreign
company, the applicant will maintain within the
country the required capital in the form of funds
transferred from abroad together with other funds
that may be determined by the Bank of Ghana.
(3) The Bank of Ghana may vary the requirements
under paragraph (b) of subsection (2), in the case
of a rural or community bank or any other
specialised deposit-taking institution that the Bank
of Ghana may determine.
(4) Where the bank or specialised deposit-taking
institution fails
to comply with the terms and conditions of the
provisional approval
within one year of the provisional approval, the
provisional approval
shall lapse.
(5) Despite the issuance of a provisional approval
under subsection (1), the Bank of Ghana may in
writing withdraw the provisional approval if
additional information subsequently made available
to the Bank of Ghana justifies the withdrawal.
Invitation to public to subscribe to shares
11. (1) An application for a licence under section 7
shall not include an invitation to raise capital
through a public issue of shares for the purpose of
the proposed deposit-taking business until the
applicant concerned obtains a final approval in
accordance with section 12.
(2) The Bank of Ghana may for stated reasons vary
the require- ment under subsection (1), in respect
of rural or community banks.
(3) An applicant who contravenes subsection (1), is
liable to pay to the Bank of Ghana an administrative
penalty of five thousand penalty units.
Final approval and issuance of banking or
speciaIised deposit-taking institution licence
12. (1) The Bank of Ghana may grant the applicant a
final approval and issue a licence to carry on a
deposit-taking business of a specified type, where
the Bank of Ghana is satisfied
(a)
with the organisational and infrastructural
arrangements made by the applicant,
(b)
that the applicant has complied with the terms and
condi- tions stipulated in the provisional approval,
and
(c)
that the prerequisites of a licence specified in
section 9 have
been met.
(2) The holder of a licence issued under this Act
shall in addition to the processing fee for the
application of a licence, pay to the Bank of Ghana
(a)
an initial licence fee, and
(b)
the annual licence fee,
that the Bank of Ghana may by notice specify.
(3) The Bank of Ghana shall notify the institution
responsible for deposit protection of the issuance
of a licence to a bank or specialised deposit-taking
institution.
Non transferability or assignment of licence
13. (1) A licence issued by the Bank of Ghana shall
not be transferred or assigned.
(2) A person who transfers or assigns a licence
issued by the Bank of Ghana commits an offence and
is liable on summary conviction to a fine of not
less than two thousand penalty units and not more
than four thousand penalty units.
Conditions for issuance of licence
14. (1) A licence issued under this Act shall be
subject to the condi- tions that the Bank of Ghana
may impose, including
(a)
membership of the Ghana Deposit Protection Scheme,
and
(b)
the activities in which the bank or specialised
deposit- taking institution is permitted to engage
in.
(2) The Bank of Ghana may amend or vary a condition
attached to a licence issued to a bank or
specialised deposit-taking institution.
(3) The Bank of Ghana shall before taking an action
under subsection (2) notify the bank or specialised
deposit-taking institution concerned in writing.
(4) Where a bank or specialised deposit-taking
institution is dis- satisfied with the decision of
the Bank of Ghana, that bank or specialised
deposit-taking institution may, within seven days of
receipt of the notice, make a representation in
writing to the Bank of Ghana.
(5) The Bank of Ghana shall, after considering the
representation made by the bank or specialised
deposit-taking institution, take a decision and
notify the bank or specialised deposit-taking
institution concerned of the decision made.
Refusal of licence
15. (1) The Bank of Ghana may refuse an application
for a licence to carry on deposit-taking business
where in view of the prevailing conditions in the
banking and specialised deposit-taking institution
sector or in keeping with the policy on banks and
specialised deposit-taking institutions, the Bank of
Ghana is not satisfied with the merits of the
application.
(2) Where the Bank of Ghana refuses an application
under subsection (1), the Bank of Ghana may give
reasons in writing for the refusal of the
application.
Revocation of licence
16.
(1) The Bank of Ghana may revoke a licence issued
under section 12, where
(a)
the Bank of Ghana is satisfied that an applicant
provided false, misleading or inaccurate information
in connection with the application for a licence or
suppressed material information;
(b)
the bank or specialised deposit-taking institution
fails to commence business within one year from the
date the licence was issued;
(c)
the bank or specialised deposit-taking institution
fails to fulfill or comply with the terms and
conditions stipulated in the licence;
(d)
the bank or specialised deposit-taking institution
carries on business in a manner which is contrary or
detrimental to the interests of depositors or the
public;
(e)
the bank or specialised deposit-taking institution
has been convicted by a domestic court or any other
court of competent jurisdiction of a crime related
to money laun-
dering or terrorist financing or is an affiliate or
subsidiary of a parent or holding company which has
been so convicted;
(f)
in the judgment of the Bank of Ghana, the bank or
specialised deposit-taking institution engages in
unsafe or unsound practices; or
(g)
the bank or specialised deposit-taking institution
persistently contravenes this Act, the Regulations,
directives or orders made under this Act.
(2) Subsection (1) does not limit the power of the
Bank of Ghana to take any other remedial or penal
action against a bank or specialised deposit-taking
institution.
(3) Where the Bank of Ghana proposes to revoke the
licence of a bank or specialised deposit-taking
institution under subsection (1), the Bank of Ghana
shall
(a)
give notice in writing to the bank or specialised
deposit- taking institution,
(b)
specify the proposed action and the grounds on which
the action is proposed to be taken, and
(c)
give the bank or specialised deposit-taking
institution an opportunity to make a written
representation within thirty days of the service of
the notice.
(4) After the expiry of the notice period and
considering any representations made by the bank or
specialised deposit-taking institution, the Bank of
Ghana may
(a)
decide whether to take the proposed action; or
(b)
vary the proposed action as the Bank of Ghana
considers appropriate; and
(c)
communicate the decision of the Bank of Ghana to the
bank or specialised deposit-taking institution.
(5) Where the Bank of Ghana revokes the licence of a
bank or specialised deposit-taking institution, that
bank or specialised deposit- taking institution
shall cease to carry on the deposit-taking business
if the bank or specialised deposit-taking
institution has already commenced business and shall
surrender the licence.
(6) A revocation of the licence of a bank or
specialised deposit- taking institution shall have
immediate effect.
(7) Despite subsections (3) and (4), the Bank of
Ghana may in cases of emergency, or in the public
interest revoke the licence of a bank or specialised
deposit-taking institution without notice.
(8) Where a licence is revoked under this section,
the Bank of Ghana shall immediately initiate a
receivership as provided in sections 123 to 139 and
notify the institution responsible for deposit
protection.
Central Register
17.
(1) There is established by this Act a register to
be known as the "Central Register".
(2) The Bank of Ghana shall keep and maintain the
Central Register in which shall be recorded
(a)
the name, head office and branch office addresses of
the licensed banks or specialised deposit-taking
institutions;
(b)
licences which have been revoked; and
(c)
any other information that the Bank of Ghana may
detemine.
(3) The Bank of Ghana shall publish details of the
Central Register on the website of the Bank of Ghana
or in any other media that the Bank of Ghana
considers fit.
Permissible activities
18.
(1) A bank or specialised deposit-taking institution
shall not carry on a business other than any of the
following:
(a)
acceptance of deposits and other repayable funds
from the public;
(b)
lending;
(c)
financial leasing;
(d)
investment in financial securities;
(e)
money transmission services;
(f)
issuing and administering of means of payment
including credit cards, travellers cheques, bankers'
drafts and electronic money;
(g)
guarantees and commitments;
(h)
trading for own account or for account of customers
in
(i) money market instruments,
(ii) foreign exchange, or
(iii) transferable securities;
(i)
participation in securities issues and provision of
services related to those issues;
(j)
advice to undertakings on capital structure,
acquisition and
merger of undertaking;
(k)
portfolio management and advice;
(l)
keeping and administration of securities;
(m)
credit reference services;
(n)
safe custody of valuables;
(0)
electronic banking;
(p)
payment and collection services;
(q)
bancassurance;
(r)
non interest banking services; and
(s)
any other services that the Bank of Ghana may
determine.
(2) Despite subsection (1), a specialised
deposit-taking institution shall not engage in the
trading of foreign exchange or offer services
denominated in a foreign currency.
(3) A bank or specialised deposit-taking institution
that is engaged in activities that are subject to
the Securities Industry Act, 1993 (PNDCL 333),
Foreign Exchange Act, 2006 (Act 723), the Credit
Reporting Act, 2007 (Act 726), the Insurance Act,
2006 (Act 724) or any other relevant enactment shall
comply with the requirements of that enactment,
including any registration, licensing or other
authorisation requirements.
(4) The Bank of Ghana may, by directive, restrict
the permissible activities of banks or specialised
deposit-taking institutions in general, or a class
of specialised deposit-taking institutions or remove
a restriction imposed as the Bank of Ghana considers
appropriate.
(5) A bank or a specialised deposit-taking
institution shall seek the prior written approval of
the Bank of Ghana to introduce products that are
derived from the permissible activities specified
under subsection (1).
(6) In pursuance of its permissible activities and
in introducing new products, a bank or specialised
deposit-taking institution shall ensure that any
material, publication or advert relating to the
activities and products do not contain false or
misleading information.
Restrictions on commercial, agricultural or
industrial activities and immovable property
19.
(1) Subject to subsection (2), a bank, specialised
deposit-taking institution or fmancial holding
company shall not engage directly in a commercial,
agricultural or industrial undertaking.
(2) Subject to the limits that the Bank of Ghana may
prescribe, a bank, specialised deposit-taking
institution or financial holding company shall not
build, purchase or take a lease of immovable
property except
(a)
for the provision of business premises, or for the
purpose of housing the staff of the bank or
specialised deposit- taking institution; or
(b)
for the provision of amenities for staff.
(3) Despite subsection (2), a bank, specialised
deposit-taking institution or financial holding
company may accept immovable property as collateral
security for a debt or other liability and may
acquire an interest which a bank, specialised
deposit-taking institution or financial holding
company may lawfully acquire in the satisfaction of
a debt due that bank, specialised deposit-taking
institution or financial holding company.
(4) An interest acquired under subsection (3) shall
be disposed of by the bank, specialised
deposit-taking institution or financial holding
company within one year after the acquisition or
within a longer period that may be determined by the
Bank of Ghana on application made by the bank,
specialised deposit-taking institution or fmancial
holding
company.
(5) Subject to the limits that the Bank of Ghana may
prescribe, a bank, specialised deposit-taking
institution or financial holding company may let or
sublet a part of immovable property which is
ordinarily used for business where the property is
in excess of the immediate requirements of the bank,
specialised deposit-taking institution or financial
holding company.
(6) A bank, specialised deposit -taking institution
or financial holding company which contravenes a
provision of this section is liable to pay to the
Bank of Ghana an administrative penalty of one
thousand five hundred penalty units and for each day
that the contravention continues, an additional
penalty of two hundred penalty units.
Powers regarding unauthorised deposit-taking
business
20.
(1) Where the Bank of Ghana has sufficient reason to
believe that a person is transacting or carrying on
a deposit-taking business or taking deposits in
contravention of section 6, the Bank of Ghana may,
in writing authorise an officer of the Bank of Ghana
to perform the functions under subsections (2) and
(3).
(2) An authorised officer may
(a)
enter any premises or property which the Bank of
Ghana has reason to believe is occupied or used by a
person for a purpose in contravention of section 6;
(b)
search for a book, record, statement, document or
any other item used or which is believed to be used,
in contravention of section 6;
(c)
seize or make a copy of a
book, record, statement, document or any other item
referred to in paragraph (b), or seize any money or
negotiable instrument found on the premises;
(d)
question a person who is found on the premises or an
auditor, director, member or partner of a person
conducting business on the premises, in connection
with the conduct
of the business on the premises;
(e)
direct that the premises of the business or any part
of it or anything on the premises, be secured and
left undisturbed for as long as is necessary to
search the premises for a book, record, statement,
document or item under paragraph (b);
(f)
examine a book, record, statement, document or any
other item referred to in paragraph (b) and may
require from a person referred to in paragraph (d)
an explanation regarding any entry in the book,
record, statement, document or other item; and
(g)
close down the business of a person referred to in
subsection (1).
(3) An authorised officer may by notice in writing
(a)
addressed and delivered to a person who has control
over or custody of a book, record, statement,
document or any other item referred to in paragraph
(b) of subsection (2), require that person to
produce the book, record, statement, document or
other item to that authorised officer of the Bank of
Ghana at the place, on the date and at the time
specified in the notice;
(b)
instruct a bank, specialised deposit-taking
institution or other entity to freeze an account of
a person referred to in this section with the bank,
specialised deposit-taking in-
stitution or other entity and to retain all moneys
in that account, pending further instructions of the
Bank of Ghana; and
(c)
delivered to a person referred to in this section,
direct that the business of that person be summarily
suspended, pending investigation by the Bank of
Ghana under this section.
(4) Where the authorised officer performs a
function under this section in the presence of a
person affected by the performance of the function,
the authorised officer shall, at the request of the
person affected, furnish the person with the written
authorisation referred to in subsection (1).
(5) A person shall not
(a)
hinder or obstruct an authorised officer of the Bank
of Ghana in the performance of the functions of that
officer;
(b)
refuse or fail to comply with a request made by an
authorised officer in the performance of the
functions of that authorised officer;
(c)
refuse or fail to answer a question which an
authorised officer lawfully directs at that person
in the performance of the functions of that
authorised officer;
(d)
knowingly furnish an authorised officer with false
or misleading information; or
(e)
falsely represent that that person is an authorised
officer of the Bank of Ghana.
(6) A person who contravenes paragraph (a), (b), (d)
or (e) of sub- section (5), 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 or a term of
imprisonment of not less than two years and not more
than four years or both.
(7) A person who contravenes paragraph (c) of
subsection (5) commits an offence and is liable on
summary conviction to a fine of not less than one
hundred and twenty-five penalty units and not more
than two hundred and fifty penalty units.
Repayment of moneys by unauthorised persons
21. (1) Where the Bank of Ghana is satisfied that a
person has obtained moneys in contravention of
section 6, the Bank of Ghana shall, in writing,
instruct that person to
(a)
repay all the moneys obtained and profits accrued,
(b)
return assets acquired as a result of the illegally
obtained moneys or deposits, or
(c)
pay any interest or other amounts which may be owing
by that person in respect of those moneys,
to the respective persons from whom the moneys were
obtained.
(2) A person required to comply with the
instructions of the Bank of Ghana under subsection
(1) shall comply
(a)
in the manner determined by the Bank of Ghana; and
(b)
within the period determined by the Bank of Ghana
and specified in the instruction.
(3) A person who fails to comply with an instruction
under sub- sections (1) and (2) shall be deemed
bankrupt or unable to pay the debts and the Bank of
Ghana may apply to the High Court for the
winding-up, or for the sequestration of the estate
of that person.
(4) Subsections (1), (2) and (3) do not affect the
criminal liability of a person under this Act.
Penalties for unauthorised deposit-taking business
22.
(1) A person who carries on a deposit-taking
business
(a)
in contravention of subsections (1) and (4) of
section 6, or
(b)
in breach of the conditions of a licence,
commits an offence.
(2) A person who commits an offence under subsection
(1) is liable on summary conviction
(a)
in the case of a body corporate or other body of
persons, to a fine of not less than two thousand
five hundred penalty units and not more than five
thousand penalty units;
(b)
in the case of a director of a body corporate or
other body of persons, to a fine of not less than
one thousand five hundred penalty units and not more
than three thousand
penalty units or to a term of imprisonment of not
less than two years and not more than four years;
and
(c)
in the case ofan individual, to a fine of not less
than one thou- sand five hundred penalty units and
not more than three thousand penalty units or to a
term of imprisonment of not less than two years and
not more than four years.
Use of the word "bank"
23.
(1) Except as otherwise provided for in this Act, a
person, other than a company holding a banking
licence, shall not hold itself out as a bank or use
the word "bank" or any of its derivatives in any
language, or any word that sounds like "bank" in the
description or that person is carrying on financial
services business in Ghana, or make a representation
to this effect in any billhead, letter, paper,
notice, advertisement or in any other manner.
(2) The use of the word "bank" in the name of an
association of banks or of employees of a bank
formed for the promotion of mutual interests of its
members shall not be construed as a contravention of
sub- section (1).
(3) Despite subsection (1), a specialised
deposit-taking institution that is licensed as a
rural or community bank may use the term "rural
bank" or "community bank".
(4) The Bank of Ghana may prescribe similar
restrictions on the use of terminology related to
other classes of specialised deposit-taking
institutions.
(5) A specialised deposit-taking institution shall
in all correspondence, publications and
advertisement, use the full name of that specialised
deposit-taking institution as stated on the licence
issued by the Bank of Ghana.
(6) The Bank of Ghana may order a person who
contravenes this section to cease using the
terminology that caused the contravention and to
change the name under which that person operates.
(7) A person who contravenes this section is liable
to pay to the Bank of Ghana an administrative
penalty of one thousand five hundred penalty units.
Display
of licence
24.
(1) A bank or specialised deposit-taking institution
shall display at the head office, branches and
agencies of that bank or specialised deposit-taking
institution, copies of the licence for the
information of the public.
(2) A bank or specialised deposit-taking institution
which fails to comply with subsection (1) is liable
to pay to the Bank of Ghana an administrative
penalty of one thousand penalty units.
Places of business to be licensed
25.
(1) A bank or specialised deposit-taking institution
shall not carry on a deposit-taking business at a
place other than a place authorised in accordance
with this Act.
(2) A bank or specialised deposit-taking
institution shall not open,
close or relocate
(a)
a branch,
(b)
an agency,
(c)
a mobilization centre,
(d)
the head office, or
(e)'
any other operational or support centre or office,
for purposes of carrying on a deposit-taking
business unless specifically authorised by the Bank
of Ghana.
(3) A bank or specialised deposit-taking institution
which contravenes this section is liable to pay to
the Bank of Ghana an administrative penalty of one
thousand penalty units.
(4) In addition to the penalty prescribed in
sub-section (3), the Bank of Ghana may suspend the
operations of the branch, agency, mobilisation
center, head office or other operational or support
centre of the bank or specialised deposit-taking
institution involved until the bank or specialised
deposit-taking institution obtains approval from the
Bank of Ghana.
Representative offices
26. (1) A foreign specialised deposit-taking
institution shall not establish a representative
office in the country.
(2) A foreign bank shall not establish a
representative office in the country unless it
obtains the prior written approval of the Bank of
Ghana.
(3) A foreign bank which seeks to establish a
representative office in the country shall apply to
the Bank of Ghana with the information and documents
that the Bank of Ghana may require, including
permission from the supervisor in the country where
that bank has its head office or is incorporated.
(4) Where the Bank of Ghana is satisfied that the
foreign bank has satisfied the requirements
specified under subsection (3), the Bank of Ghana
shall issue the foreign bank with a certificate of
approval.
(5) A representative office of a foreign bank in the
country shall display in a conspicuous place at the
premises of that representative office, a copy of
the certificate of approval issued under subsection
(4) for the information of the public.
(6) A representative office of a forei~ bank shall
only provide information and perform liaison
functions.
(7) A representative office of a foreign bank shall
not transact any form of deposit-taking or other
business in the country.
(8) The Bank of Ghana may require a director or key
management personnel of a representative office to
submit information or data relating to the assets,
liabilities, income, expenditure or any of the
affairs of the representative office.
(9) With respect to a reporting requirement under
this section or any other section of this Act, the
Bank of Ghana may prescribe
(a)
the details of the information that is required,
(b)
the form in which the information shall be reported,
and
(c)
the times or intervals of time at which the
reporting is required.
(10) A foreign bank or representative office which
fails to comply with this section commits an offence
and is liable on summary conviction to a fine of not
less than one thousand five hundred penalty units
and not more than three thousand penalty units.
Change of Company Regulations and other instruments
of banks or speciaIised deposit -taking institutions
27.
(1) A bank or specialised deposit-taking institution
shall, before making an amendment to the company
name, Company Regulations or other instrument under
which that bank or specialised deposit-taking
institution was established, furnish the Bank of
Ghana with particulars of the proposed amendment for
approval.
(2) The bank or specialised deposit-taking
institution shall within one month after the
amendment is effected file with the Bank of Ghana, a
certified copy of the amendment.
(3) A bank or specialised deposit-taking institution
which contravenes this section is liable to pay to
the Bank of Ghana an administrative penalty of two
thousand five hundred penalty units.
Capital and Reserves
Minimum paid-up capital
28.
(1) A bank or specialised deposit-taking institution
shall ensure that while in operation, it maintains
in the country a minimum paid-up capital, unimpaired
by losses including accumulating losses or other
adjustments, as may be prescribed by the Bank of
Ghana for banks and specialised deposit-taking
institutions.
(2) The Bank of Ghana may prescribe different
requirements under this section for different
classes of specialised deposit-taking institutions.
(3) For the purpose of calculating impairment of
paid-up capital, losses shall be set off in the
following order:
(a)
against income surplus and other distributable
reserves excluding revaluation reserves; and
(b)
against the Reserve Fund established under section
34.
(4) A financial holding company shall maintain at
all times a minimum paid up capital, unimpaired by
losses or other adjustments, as may be prescribed by
the Bank of Ghana.
Capital adequacy and other capital requirements
29.
(1) The Bank of Ghana shall, by a directive,
prescribe a risk-based capital adequacy requirement,
which may be measured as a percentage of the capital
of the bank, specialised deposit-taking institution
or financial holding company to its assets.
(2) The minimum capital adequacy ratio shall be at
least ten percent.
(3) The Bank of Ghana may, having regard to the risk
and vulner- ability of the financial system,
(a)
prescribe a higher capital adequacy ratio
percentage, or
(b)
prescnbe different ratios for different banks,
financial holding companies and for different
classes of specialised deposit- taking institutions.
(4) The minimum capital adequacy ratio shall be
calculated in accordance with the methodology
prescribed in the directive issued by the Bank of
Ghana.
(5) The Bank of Ghana may, for the purpose of
calculating the minimum capital adequacy ratio,
define eligible capital, categories of risk assets
and appropriate adjustments and additions.
(6) The Bank of Ghana may prescribe one or more
capital buffers above that required by the minimum
capital adequacy ratio and shall further prescribe
whether failure to maintain the required buffer will
constitute failure to meet the minimum capital
requirements for purposes of sections 91 to 139.
(2) A bank, specialised deposit-taking institution
or financial holding company which fails to notify
the Bank of Ghana as required under subsection (1)
is liable to pay to the Bank of Ghana an
administrative penalty of one thousand penalty
units.
Penalty for non-compliance with capital requirements
33.
(1) A bank, specialised deposit-taking institution
or financial holding company which fails to maintain
the level of minimum unim- paired paid up capital
required under section 28 or the capital adequacy .
ratio required under sections 29 to 31 is liable to
pay to the Bank of Ghana a penalty of one-half per
mille of the difference between the capital that
the entity should have maintained and the level of
capital actually maintained by the entity for each
day that the default continues.
(2) A director and the chief executive of a bank or
specialised deposit-taking institution which fails
to comply with the minimum capital adequacy ratio
are personally liable to pay to the Bank of Ghana an
administrative penalty of five hundred penalty
units.
Reserve Fund
34.
(1) A bank or specialised deposit-taking institution
shall establish and maintain a Reserve Fund into
which shall be transferred out of net profits for
each year
(a)
where the amount of the Reserve Fund is less than
fifty per cent of the paid-up capital of the bank or
specialised deposit-taking institution, an amount
which is not less than
fifty per cent of the net profit for the year;
(b)
where the amount of the Reserve Fund is fifty per
cent or more but less than one hundred per cent of
the paid-up capital of the bank or specialised
deposit-taking institution, an amount which is not
less than twenty five per cent of the net profit for
the year; or
(c)
where the amount of the Reserve Fund is equal to one
hundred per cent or more of the paid-up capital of
the bank or specialised deposit-taking institution,
an amount equal to twelve and half per cent of the
net profit for the year.
(2) The transfer required under subsection (1) shall
be made
(a)
before the declaration of interim or final
dividends, and
(b)
after making provision for tax.
(3) A bank or specialised deposit-taking institution
which fails to maintain a Reserve Fund in accordance
with subsection (1), is liable to pay to the Bank of
Ghana an administrative penalty of two thousand
penalty units.
Restrictions on declaration and payment of dividend
35. (1) A bank or specialised deposit-taking
institution shall not declare or pay interim or
final dividend on the shares of that bank or
specialised deposit-taking institution unless the
bank or specialised deposit-taking institution has
(a)
completely written-off capitalised expenditure,
(b)
made the required provision for non-performing loans
and other erosions in asset values,
(c)
satisfied the prescribed capital requirements,
(d)
completely written-off accumulated operating losses
from the normal operations of that bank or
specialised deposit- taking institution,
(e)
made the required transfer to the Reserve Fund under
section 34,
(f)
satisfied the obligations of that bank or
specialised deposit- taking institution under the
Ghana Deposit Protection Act, 2015 (Act .... ) and
paid any outstanding premium owed the Ghana Deposit
Protection Corporation, and
(g)
clawed back any dividend paid in contravention of
section 34.
(2) Where
(a)
the payment of dividend results in the withdrawal of
a part of the free reserves due to inadequacy of the
profit for the year; or
(b)
the statutory report of the auditors on the annual
accounts of the bank or specialised deposit-taking
institution is not satisfactory,
the bank or specialised deposit-taking institution
may declare a dividend on shares only
(3) Where a bank or specialised deposit-taking
institution declares or pays a dividend in
contravention of subsection (1) or (2) each director
of the bank or specialised deposit-taking
institution is personally liable to pay to the Bank
of Ghana an administrative penalty of five hundred
penalty units.
(4) A director is not liable to pay the penalty
under subsection (3) if
(a)
the contravention was committed without the
knowledge or consent of that director; or
(b)
the director exercised due diligence to prevent the
commission of the contravention having regard to all
the circumstances.
(5) A bank or specialised deposit-taking institution
which contravenes a provision of this section is
liable to pay to the Bank of Ghana an administrative
penalty of one thousand penalty units.
(6) For the purposes of this section, "capitalised
expenditure" includes preliminary expenses and any
other item of expenditure not represented by
tangible assets as may be determined by the Bank of
Ghana.
Liquidity
Liquidity requirements
36.
(1) The Bank of Ghana shall prescribe one or more
liquidity requirements for banks, specialised
deposit-taking institutions and financial holding
companies.
(2) The details of the requirements shall be
specified by directive and may specify different
liquidity requirements for banks, specialised
deposit-taking institutions or classes of
specialised deposit-taking institutions and
financial holding companies.
(3) The Bank of Ghana may, in addition to subsection
(1), prescribe qualitative criteria required for the
liquidity risk management policies and procedures of
the bank, specialised deposit-taking institution or
financial group.
(4) A bank or specialised deposit-taking institution
shall, at a time and in respect of a period that the
Bank of Ghana may require, submit to the Bank of
Ghana a report on the liquid assets of that bank or
specialised deposit-taking institution.
(5) A bank or specialised deposit-taking institution
which fails to comply with subsection (4) shall pay
to the Bank of Ghana the penalty provided under
section 93 (3).
(6) A bank or specialised deposit-taking institution
that contra- venes subsection (4) is, in addition to
the penalty specified in subsection (5), liable to
pay to the Bank of Ghana an administrative penalty
of an amount calculated as one half per mille of the
deficiency for each day that the deficiency
persists.
Maintenance of liquid assets on a consolidated basis
37. The Bank of Ghana may by directive prescribe
liquidity require- ments under section 36 that are
to be applied on a consolidated basis to
(a)
a bank, specia1ised deposit-taking institution and a
subsidiary of a bank or specialised deposit-taking
institution, and
(b)
a financial holding company and a subsidiary of a
financial holding company.
Additional liquidity requirement for additional risk
38. The Bank of Ghana may impose a higher liquidity
requirement than that prescribed under section 36 on
an individual bank, specialised deposit-taking
institution, or financial holding company to address
increased liquidity risks in the bank, specialised
deposit-taking institu- tion or financial holding
company, or in the financial system.
Notification of non-compliance with minimum
liquidity requirements
39. (1) A bank or specialised deposit-taking
institution which fails to comply with the required
liquidity requirements shall promptly notify the
Bank of Ghana of the non-compliance and provide the
Bank of Ghana with the particulars of the
non-compliance, including the reasons for the breach
and the measure taken to rectify the breach.
(2) A bank or specialised deposit-taking institution
that fails to comply with subsection (1) is liable
to pay to the Bank of Ghana an administrative
penalty of one thousand penalty units.
Penalties for non-compliance with liquidity
requirements
40. (1) A bank, specialised deposit-taking
institution or financial holding company which fails
to hold liquid assets in accordance with section 36
is liable, in addition to any other penalty, to pay
interest to the Bank of Ghana at a rate to be
prescribed by the Bank of Ghana on the difference
between the total amount of liquid assets which it
is required to
hold and the total amount of liquid assets actually
held, in respect of a period during which a
difference exists.
(2) Despite any other action that the Bank of Ghana
may take, the Bank of Ghana may issue an order under
section 103 requiring that, during a period
specified in the order, the bank, specialised
deposit- taking institution or financial holding
company shall
(a)
discontinue or limit in a manner specified, the
granting of credit or the making of investments or
capital expenditure;
(b)
not distribute dividends to shareholders; and
(c)
be subject to enhanced reporting.
(3) A bank, specialised deposit-taking institution
or financial holding company which makes a fresh
advance to a person during the existence
of a deficiency in the amount specified of its
liquid assets without the approval of the Bank of
Ghana is liable to pay to the Bank of Ghana an
administrative penalty of five hundred penalty
units.
(4) A bank, specialised deposit-taking institution
or financial holding company which contravenes
subsection (2) is, in addition to the penalty
specified in subsection (3), liable to pay to the
Bank of Ghana an administrative penalty of forty
penalty units for each day that the contraven- tion
continues.
(5) To ensure compliance with the requirements of
this section, the Bank of Ghana may require a bank,
specialised deposit-taking institution or financial
holding company to furnish the Bank of Ghana with
information by a specified date in a form that the
Bank of Ghana considers appropriate.
(6) In addition to the penalty specified in
subsections (3) and (4), a director or chief
executive of a non-compliant bank, specialised
deposit- taking institution or financial holding
company is liable to pay to the Bank of Ghana, a
penalty in respect of each day during which the
deficiency continues of an amount calculated as one
half per mille of the deficiency for each day that
the deficiency persists.
(7) The Bank of Ghana may waive or postpone the
payment of a monetary penalty under this section
where
(a)
the Bank of Ghana takes some other action to require
the bank to remedy the non-compliance, and
(b)
in the view of the Bank of Ghana, the imposition of
a monetary penalty may worsen the condition of the
bank, specialised deposit-taking institution or
financial holding
company.
Maintenance of Net Open Position
41.
(1) A bank shall maintain a Net Open Position as may
be prescribed by the Bank of Ghana.
(2) The Bank of Ghana may prescribe different Net
Open Position limits for a particular bank or banks.
(3) A bank shall, at a time and in respect of a
period that the Bank of Ghana may require, submit to
the Bank of Ghana a report on the Net Open Position
of the bank.
(4) A bank which fails to comply with this section
shall, in addition to any other penalty to which the
bank is liable, pay in respect of each day during
which the deficiency exists, an amount calculated as
one half per mille of the deficiency.
Ownership and Control
Reporting of group structures
42.
(1) For purposes of consolidated supervision or any
other specialised supervision, a bank or specialised
deposit-taking institution that is a member of a
corporate group shall at least twice in each year at
times prescribed by the Bank of Ghana, furnish the
Bank of Ghana with a complete organisational
structure of the group.
(2) The organisational structure shall include
(a)
a diagram of the group,
(b)
direct and indirect affiliates and associates of the
bank or specialised deposit-taking institution,
(c)
the nature of the relationship between the
affiliates and associates and the group, and
(d)
any other information that the Bank of Ghana may
require.
(3) Where there is a change to the structure of the
corporate group that is not otherwise subject to
approval of the Bank of Ghana under this Act, the
bank or specialised deposit-taking institution shall
report to the Bank of Ghana within the time frame
prescribed by the Bank of Ghana.
Registration requirement for financial holding
companies
43.
(I) A person shall not function as a financial
holding company except in accordance with subsection
(2), and sections 44 to 47.
(2) An action taken without the prior written
approval of the Bank of Ghana which causes
(a)
a company to become a financial holding company;
(b)
a bank or specialised deposit-taking institution to
become a subsidiary of a financial holding company;
(c)
a financial holding company to acquire direct or
indirect ownership or control of the voting shares
of a bank or specialised deposit-taking institution
where, after the
acquisition, that company will directly or
indirectly own or control more than five percent of
the voting shares of that bank or specialised
deposit-taking institution;
(d)
a financial holding company or subsidiary of a
financial holding company, other than a bank or
specialised deposit- taking institution, to acquire
all or substantially all of the assets of a bank or
specialised deposit-taking institution; or
(e)
a financial holding company to merge or consolidate
with any other financial holding company
is unlawful.
(3) The Bank of Ghana may exempt a foreign bank or
other foreign company that is subject to regulation
and supervision in another juris- diction
(a)
from inclusion in the definition of "financial
holding company", or
(b)
from the application of one or more of the
provisions of this Act applicable to financial
holding companies,
where that foreign bank or other foreign company is
subject to supervision and regulation that is
satisfactory to the Bank of Ghana, including
supervision on a consolidated basis, in its home
jurisdiction or another host jurisdiction in which
it has substantial operations.
(4) An exemption under subsection (3) may be subject
to the terms and conditions that the Bank of Ghana
considers appropriate having regard to the
objectives of consolidated supervision or any other
specialised supervision.
Application for registration
44. (1) A person shall not take an action that
causes a company to function as a financial holding
company unless that company is registered as a
financial holding company by the Bank of Ghana.
(2) A person who wishes to be registered as a
financial holding company shall
(a)
apply in writing to the Bank of Ghana in the form
that may be determined by the Bank of Ghana,
(b)
pay a non-refundable application fee as may be
determined by the Bank of Ghana, and
(c)
attach to the application the following information
and documents:
(i) the capital resources, including original
sources and capital structure of the proposed
financial holding company,
(ii) the names, addresses, occupations, business and
professional history for the preceding ten years or
a longer period that the Bank of Ghana may deter-
mine, certified financial positions, and corporate
affiliations of persons who will hold or ultimately
benefit from significant shareholdings, directly or
indirectly, in the proposed financial holding
company and the respective values of the shares;
(iii) organisational and managerial structures,
including a complete diagram of the group of
companies controlled by the proposed financial
holding company, identifying the direct and indirect
affiliates and associates and the nature of their
relationship to the financial holding company;
(iv) the particulars of the directors and key
management personnel of the financial holding
company, including qualification and experience,
business and professional history for the preceding
ten years or a longer period that the Bank of Ghana
may determine, certified financial position,
business interests and performance of the business
concerns under their control or management;
(v) the feasibility report, including a business
plan and financial projections for the first five
years and areas of intended activities;
(vi) audited financial statements for the past three
years, if applicable, or for a lesser period that
the entity has been in existence if shorter than
three years;
(vii) the measures and structures the company
intends to adopt to ensure that business is
conducted in accordance with sound corporate
governance principles;
(viii) for each director, key management personnel
or significant shareholder of the proposed financial
holding company, a statutory declaration disclosing
where applicable, a conviction for offences by a
court of competent jurisdiction, personal bankruptcy
filings, the disqualifications from practising a
profession, or past or present involvement in a
managerial function of a body corporate or other
undertaking subject to insolvency proceedings; and
(ix) any other particulars that the Bank of Ghana
may require.
(3) For the purpose of determining whether to
register an appli- cant as a financial holding
company, the Bank of Ghana shall
(a)
consider the information referred to in subsection
(2), and in particular whether the person
controlling the proposed financial holding company
is suitable, or may prejudice the interests of
depositors and other customers of the bank or
specialised deposit-taking institution; and
(b)
determine whether ownership of shares by the person
controlling the proposed financial holding company,
given the corporate affiliations or structure, will
hinder effective
supervision under this Act or is likely to prejudice
the interests of depositors and other customers of
the bank or specialised deposit-taking institution.
(4) The Bank of Ghana shall not register an
applicant as a financial holding company unless the
Bank of Ghana is satisfied that
(a)
the feasibility report is based on sound analysis
under reasonable assumptions;
(b)
key management personnel are fit and proper, and
have the integrity, qualification and experience for
the positions given the business plan and activities
of the proposed bank or specialised deposit-taking
institution and taking into account the size, nature
and complexity of the proposed financial holding
company;
(c)
the proposed significant shareholders are suitable
and the ownership and managerial structure of the
proposed financial holding company will not hinder
effective supervision,
including supervision on a consolidated basis;
(d)
the capital of the applicant is adequate and the
original sources of capital are not tainted and do
not include borrowed funds;
(e)
the arrangements for corporate governance, including
accounting, risk management, and internal control
systems and records of the applicant are adequate;
(f)
the applicant has the capacity to comply with the
other conditions that the Bank of Ghana may impose;
and
(g)
where the applicant is a foreign company,
(i) the Bank of Ghana is satisfied that the foreign
bank or specialised deposit-taking institution is
adequately supervised on a global consolidated basis
by the home country supervisor of that bank or
specialised deposit-taking institution, and
(ii) arrangements satisfactory to the Bank of Ghana
for cooperation, coordination, and
information-sharing with the home country supervisor
are in place.
(5) The Bank of Ghana may impose conditions in
respect of the registration of a financial holding
company under this section, and may vary, remove or
add further conditions that the Bank of Ghana
considers necessary to carry out the purposes of
this Act.
(6) The Bank of Ghana shall
(a)
within ten working days of the receipt of an
application, acknowledge in writing the receipt of
the application;
(b)
within six months after the receipt of complete
informa- tion in respect of an application
communicate its decision in writing on the
application for registration to the applicant.
(7) Despite paragraph (b) of subsection (6) where
the Bank of Ghana is of the opinion that further
investigation or information is required to process
the application, the Bank of Ghana shall within a
reasonable period after the six month period
specified under paragraph
(b) of subsection (6) notify the applicant in
writing of the decision of the Bank of Ghana.
(8) The Bank of Ghana shall on satisfying itself
that the applicant has
(a)
paid the application fee, and
(b)
satisfied all other preconditions, issue a
certificate of registration to the applicant.
(9) Where the Bank of Ghana rejects an application,
the Bank of Ghana may provide reasons in writing to
the applicant.
Display of certificate of registration
45.
(1) A financial holding company shall display at the
head office of that financial holding company a copy
of the certificate of registration issued to that
company for the information of the public.
(2) A fmancial holding company which fails to comply
with subsection (1) is liable to pay to the Bank of
Ghana an administrative penalty of not more than one
thousand penalty units.
Restriction on activities offinancial holding
companies
46.
(1) A financial holding company shall not
(a)
without the prior written approval of the Bank of
Ghana, directly or indirectly control any member of
another financial group, whether through
establishment or acquisition or
otherwise; or
(b)
directly or indirectly, acquire or hold a share or
ownership interest in a commercial, agricultural or
industrial company or unincorporated entity.
(2) A financial holding company may invest in a
company that engages in activities permissible for
banks and specialised deposit-taking institutions
under section 18 and any other activities that may
be determined by the Bank of Ghana.
(3) For the purpose of subsection (2), the Bank of
Ghana may prescribe rules relating to
(a)
the maximum percentage of shares of a class or the
maxi-
mum value of ownership interests that may be
acquired or
held;
(b)
the maximum aggregate value of the shares and
ownership
interest referred to in paragraph (a); and
(c)
any other matter in respect of the activities
permissible for banks and specialised deposit-taking
institutions.
(4) The Bank of Ghana may exempt a company from the
requirement of subsection (1) if that company is
(a)
a foreign bank or specialised deposit-taking
institution,
(b)
a foreign financial institution, or
(c)
a foreign financial holding company
and the Bank of Ghana is satisfied that the
permitted activities of that bank, specialised
deposit-taking institution, foreign financial
institution or foreign fmancial holding company are
adequately regulated and supervised and do not
present unacceptable risks to the bank or the
specialised deposit-taking institutions in the
country.
Power to require restructuring of ownership
47.
The Bank of Ghana may require the restructuring of
the owner- ship of a bank or specialised
deposit-taking institution where
(a)
that bank or specialised deposit-taking institution
is controlled by two or more persons acting in
concert and those persons also control one or more
other companies; or
(b)
the Bank of Ghana
determines that the structure of a corporate group
of which a bank or specialised deposit- taking
institution is a member hinders effective
supervision on a solo or consolidated basis.
Withdrawal of registration by Bank of Ghana
48.
(1) The Bank of Ghana may withdraw the registration
of a financial holding company and require
divestiture of a bank or specialised deposit-taking
institution licensed under this Act, where
(a)
the financial holding company persistently fails to
comply with the requirements of this Act,
(b)
the financial holding company fails to comply with
the conditions of registration,
(c)
the financial holding company ceases to meet the
requirements for registration as a financial holding
company,
(d)
the Bank of Ghana determines that registration was
granted based on false or inaccurate information,
(e)
the Bank of Ghana determines that the financial
holding company is insolvent or is likely to become
insolvent,
(f)
the parent company of the financial holding company
loses its authorisation to conduct deposit-taking
business in its home jurisdiction, or
(g)
proceedings for bankruptcy, insolvency or an
arrangement with creditors are initiated against
that financial holding company.
(2) Where a registration is withdrawn under
subsection (1), the Bank of Ghana may
(a)
require the divestiture of the bank or specialised
deposit- taking institution in the country,
(b)
restrict transactions between the bank or
specialised deposit- taking institution in the
country and the financial holding company and other
members of the financial group, or
(c)
place the financial holding company in official
administra- tion or receivership.
Transfer of shares affecting significant
shareholdings
49.
(1) At the end of June and December of every year,
each bank, specialised deposit-taking institution or
financial holding company shall
furnish the Bank of Ghana with a report listing the
significant shareholders,
including ultimate beneficial owners of shares,
whether or not they are
the owners on record.
(2) Despite any other enactment, a person shall not
without the
prior approval in writing of the Bank of Ghana
(a)
directly or indirectly, alone or in concert with one
or more other persons, acquire shares in a bank,
specialised deposit- taking institution or financial
holding company which to- gether with any existing
direct or indirect holdings of that person,
constitute a significant shareholding;
(b)
directly or indirectly, alone or in concert with one
or more other persons, increase the ownership
interest of that person in a bank, specialised
deposit-taking institution or financial holding
company if the aggregate ownership interest of that
person after the increase would exceed one of the
supervisory thresholds;
(c)
directly or indirectly, alone or in concert with one
or more other persons sell or dispose of shares in
the bank, specialised deposit-taking institution or
financial holding
company to any other person if as a result of the
transaction, the shareholding will fall below one of
the supervisory thresholds or cease to be
significant in the case of a person
who has a significant shareholding in a bank,
specialised deposit-taking institution or financial
holding company; or
(d)
enter into an agreement or arrangement which will
result in a change in the control of a financial
holding company.
(3) For the purpose of this section, the supervisory
thresholds are five, ten, twenty, thirty, fifty or
seventy-five percent of equity.
(4) This section does not apply to a transfer of
shares for which an application for registration as
a financial holding company under section
43 is required, unless an exemption from
registration is granted in accor- dance with that
section.
(5) A person seeking approval of a transaction under
subsection (2) shall notify the Bank of Ghana three
months before the date of the proposed acquisition
or disposal.
(6) An application for the acquisition of equity
interest in a bank or specialised deposit-taking
institution or increase in holdings of equity
interests in a bank or specialised deposit-taking
institution shall be in the form prescribed by the
Bank of Ghana and shall contain the same information
regarding proposed significant shareholders for a
bank or
specialised deposit-taking institution that is
required under section 7 for licensing a bank.
Disapproval of transfer of shares
50.
The Bank of Ghana may disapprove a proposed transfer
of shares in the interest of sound and prudent
management of a bank or specialised deposit-taking
institution and the functioning and stability of the
overall financial system by preventing
(a)
the acquisition of shares by a person who, in the
opinion of the Bank of Ghana, would not be a fit and
proper person or who may exercise influence to the
detriment of that bank
or specialised deposit-taking institution,
(b)
the sale or disposal of shares by a promoter,
director or a person who has a controlling interest
which may be detri- mental to that bank or
specialised deposit-taking institution, or
(c)
a transaction in any other situation in which the
Bank of Ghana has reason to believe that the
transaction may be detrimental to that bank or
specialised deposit-taking institution.
Restriction or cap on ownership
51.
Without limiting section 50, the Bank of Ghana may
prescribe a cap on the ownership of banks or
specialised deposit-taking institutions, in the form
of a restriction that ownership of a specific type
of specialised deposit-taking institution be limited
to ownership by individuals or that ownership be
capped at a certain percentage for all or some types
of owners.
Sale of businesses, mergers, amalgamations and
reconstructions
52.
(1) A person shall not enter into an agreement or
arrangement
(a)
for the sale, disposal or transfer of the whole or a
part of the business of a bank, specialised
deposit-taking institution or financial holding
company;
(b)
for the amalgamation or merger of a bank,
specialised deposit-taking institution or financial
holding company with any other bank, specialised
deposit-taking institution or financial holding
company or any other institution; or
(c)
for the reconstruction of a bank, specialised
deposit- taking institution or financial holding
company
unless the parties to the agreement or arrangement
have submitted an application on the proposed
agreement or arrangement and all other relevant
information and documents for the approval of the
Bank of Ghana.
(2) The Bank of Ghana shall communicate its decision
on an application under subsection (1) within six
months from the date of receipt of complete
information.
Consideration of application
53.
(1) For the purpose of sections 49 and 52, the Bank
of Ghana may in writing require an applicant or a
person who is a director, key management personnel
or financial holding company of an applicant to
provide additional information or documents.
(2) On receipt of the application and any other
information and documents in accordance with
subsection (1), the Bank of Ghana may consider the
application and refuse or approve the application in
accor- dance with section 50 or 52.
(3) An approval granted by the Bank of Ghana is
subject to the modifications, variations or
conditions that the Bank of Ghana may pre- scribe.
Review of applications for approval of sale of
businesses, mergers, amalgamations, or
reconstructions
54.
(1) For the purpose of reviewing an application for
approval sub- mitted under section 52, the Bank of
Ghana shall take into consideration
(a)
the financial and managerial resources and future
prospects of the existing and proposed institution,
or the surviving or acquiring institutions,
(b)
the effect of the proposed transaction on
competition,
(c)
the convenience and needs of the community to be
served,
(d)
the risk to the stability of the banking or
financial system, and
(e)
the effectiveness of the existing bank or
specialised deposit- taking institution involved in
the proposed transaction in combating money
laundering and terrorist financing
activities.
(2) A transaction involving a foreign bank shall not
be approved unless the home supervisor of the
foreign bank indicates that it has no objection to
the transaction.
(3) A proposed transaction that has the effect to
substantially lessen competition shall not be
approved, unless the Bank of Ghana finds that the
anti-competitive effects of the proposed transaction
are clearly out- weighed in the public interest by
the probable effect of the transaction in meeting
the convenience and needs of the community to be
served.
(4) The Bank of Ghana may, by directive, specify the
procedure for processing applications made under
section 52 and this section and the factors that the
Bank of Ghana will consider in making a
determination.
(5) Despite any procedure required under the
Companies Act, 1963 (Act 179) for completion of a
merger or other transaction described in section 52,
a merger or transaction involving a bank or
specialised deposit-taking institution shall not
take effect unless the Bank of Ghana approves the
merger or transaction under this Act.
(6) A person who acquires shares of a bank or
specialised deposit- taking institution in
connection with a takeover, merger or amalgamation
of a bank or specialised deposit-taking institution
shall meet the requirements of this Act before
applying for a review and approval of the takeover,
merger or amalgamation under the Securities Industry
Act, 1933 (PNDCL 333).
Penalties for non-compliance
55. (1) Where the Bank of Ghana has proof that a
person has contravened
section 49 or 52, the Bank of Ghana may by order
(a)
annul the transfer, merger, amalgamation or
reconstruction;
(b)
prohibit the exercise of
voting rights in respect of the shares;
(c)
prohibit the payment of dividend in respect of the
shares; or
(d)
prohibit the issue of 'bonus shares' or 'rights
issue' in respect of the shares.
(2) An order under subsection (1),
(a)
shall be in writing; and
(b)
is binding on the parties to the share transfer and
the bank or specialised deposit-taking institution
concerned.
Corporate governance
56.
The Bank of Ghana may prescribe rules regarding any
matter of corporate governance of a bank,
specialised deposit-taking institution or financial
holding company that the Bank of Ghana considers
necessary or appropriate to ensure prudent
operation, including matters relating to
(a)
the scope and nature of the duties of directors of a
bank, specialised deposit-taking institution or
financial holding company;
(b)
the requirements for audit and other specific
committees of the Board;
(c)
the responsibilities of key management personnel;
(d)
risk management;
(e)
internal audit; and
(f)
internal controls and compliance.
Duty of directors to report
57.
(1) The board of directors or any director shall
report, in writing, to the Bank of Ghana if there is
sufficient reason to believe that a bank,
specialised deposit-taking institution or financial
holding company
(a)
may not have the capacity to properly conduct the
business of that bank, specia1ised deposit-taking
institution or financial holding company as a going
concern;
(b)
is not likely to meet the obligations of that bank,
specialised deposit-taking institution or financial
holding company in the near future;
(c)
has suspended or is about
to suspend a payment of any kind;
(d)
does not or may not meet the capital requirements of
that bank, specialised deposit-taking institution or
financial holding company as prescribed in this Act;
(e)
is engaged in, exposed to or involved in an event
which is likely to have a material adverse impact on
that bank, specialised deposit-taking institution or
financial holding
company; or
(f)
has contravened or is likely to contravene an
enactment.
(2) A director who intends to report a matter
referred to in subsection (1), shall make that
intention known to the board of directors in writing
before reporting to the Bank of Ghana.
(3) Where the board of directors or a director
fails, omits or neglects to report to the Bank of
Ghana a matter required to be reported under
subsection (1), the Bank of Ghana may consider the
board of directors or the director concerned no
longer fit and proper to perform functions in
respect of that office.
(4) Despite subsection (3), the board of directors
or a director who contravenes subsection (1), is
liable to pay to the Bank of Ghana an administrative
penalty of not more than five hundred penalty units.
Disqualification of a director and key
management personnel
58. (1) A person shall not be appointed or elected
or, accept an appointment or election, as a director
or key management personnel of a bank, specialised
deposit-taking institution or financial holding
company if that person
(a)
has been adjudged to be of unsound mind or is
detained as a person with a mental disorder under
any relevant enactment;
(b)
has been declared insolvent or has entered into
agreement with another person for payment of the
debt of that person and has suspended payment of the
debt;
(c)
has been convicted of an offence involving fraud,
dishonesty or moral turpitude;
(d)
has been a director, key management personnel or
associ- ated with the management of an institution
which is being or has been wound up by a court of
competent jurisdiction
on account of bankruptcy or an offence committed
under an enactment;
(c)
has suspended or is about to suspend a payment of
any kind;
(d)
does not or may not meet the capital requirements of
that bank, specialised deposit-taking institution or
financial holding company as prescribed in this Act;
(e)
is engaged in, exposed to or involved in an event
which is likely to have a material adverse impact on
that bank, specialised deposit-taking institution or
financial holding
company; or
(f)
has contravened or is likely to contravene an
enactment.
(2) A director who intends to report a matter
referred to in subsection (1), shall make that
intention known to the board of directors in writing
before reporting to the Bank of Ghana.
(3) Where the board of directors or a director
fails, omits or neglects to report to the Bank of
Ghana a matter required to be reported under
subsection (1), the Bank of Ghana may consider the
board of directors or the director concerned no
longer fit and proper to perform functions in
respect of that office.
(4) Despite subsection (3), the board of directors
or a director who contravenes subsection (1), is
liable to pay to the Bank of Ghana an administrative
penalty of not more than five hundred penalty units.
DisquaIification of a director and key management
personnel
58.
(1) A person shall not be appointed or elected or,
accept an appointment or election, as a director or
key management personnel of a bank, specialised
deposit-taking institution or financial holding
company if that person
(a)
has been adjudged to be of unsound mind or is
detained as a person with a mental disorder under
any relevant enactment;
(b)
has been declared insolvent or has entered into
agreement with another person for payment of the
debt of that person and has suspended payment of the
debt;
(c)
has been convicted of an offence involving fraud,
dishonesty or moral turpitude;
(d)
has been a director, key management personnel or
associated with the management of an institution
which is being or has been wound up by a court of
competent jurisdiction
on account of bankruptcy or an offence committed
under an enactment;
(e)
is a director or key
management personnel of another bank, specialised
deposit-taking institution or financial holding
company in the country;
(f)
is below the age of eighteen years;
(g)
does not have the prior written approval of the Bank
of Ghana; or
(h)
has defaulted in the repayment of the financial
exposure of
that person.
(2) A bank, specialised deposit-taking institution
or financial holding company which has knowledge or
is aware of a circumstance that subjects a director
or key management personnel to disqualification
under subsection(1) shall promptly notify the Bank
of Ghana.
(3) Where a person becomes disqualified under
subsection (1), that person shall immediately cease
to hold office as a director or key management
personnel and the bank, specialised deposit-taking
institution or financial holding company shall
immediately terminate the appointment of that
person.
(4) A person who contravenes subsection (1) is
liable to pay to the Bank of Ghana an administrative
penalty of one thousand penalty units.
(5) Subsection (1) (e) does not apply where
(a)
a person appointed as a director of the ARB Apex
Bank Limited is a director of a rural or community
bank;
(b)
a person appointed as a director of a rural or
community bank is a director of another bank; or
(c)
in the opinion of the Bank of Ghana, special
circumstances require that the person is appointed
as a director of another bank, specialised
deposit-taking institution or financial holding
company.
Disclosure of interest
59.
(1) A person shall, before assuming office as a
director or key management personnel of a bank,
specialised deposit-taking institution or financial
holding company, declare to the board of directors
of that bank, specialised deposit-taking institution
or financial holding company and the Bank of Ghana
(a)
the professional interest of that person or office
that person holds as manager, director, trustee or
by any other designa- tion; and
(b)
the investment or business
interest of that person in a firm, company or
institution as a significant shareholder, director,
partner, proprietor or guarantor
with a view to prevent a conflict of interest with
the duties or interests of that person as a director
or key management personnel of the bank, specialised
deposit-taking institution or financial holding
company.
(2) A director or key management personnel of a
bank, specialised deposit-taking institution or
financial holding company shall
(a)
provide an annual declaration of the interests and
offices held under subsection (1);
(b)
declare to the board of directors of that bank,
specialised deposit-taking institution or financial
holding company, any material change in business
interest or holding of an
office when that change occurs.
(3) A director of a bank, specialised deposit-taking
institution or financial holding company who has an
interest in
(a)
a proposed credit facility to be given to a person
by that bank or specialised deposit-taking
institution, or
(b)
a transaction that is proposed to be entered into
with any other person shall declare the nature and
the extent of that interest to the board of
directors and shall not take part in the
deliberations and the decision of the board of
directors with respect to that request.
(4) A declaration under subsection (3) shall form
part of the proceedings of the meeting of the board
of directors.
(5) A proposal in which a director has an interest
shall be considered and determined by the board of
directors.
(6) A person who contravenes a provision of this
section ceases to be a director of the bank,
specialised deposit-taking institution or financial
holding company and an approval granted to that
person by the board of directors in respect of a
matter in which that person is interested renders
the approval unenforceable.
Intervention of the Bank of Ghana in appointments
60.
(1) A bank or specialised deposit-taking institution
shall seek the prior written approval of the Bank of
Ghana before it appoints a Chief Executive or Deputy
Chief Executive of that bank or specialised deposit-
taking institution.
(2) A Chief Executive or Deputy Chief Executive in
respect of whom an approval is sought under
subsection (1) shall be ordinarily resident in the
country.
(3) Despite sub-clause (2), where the Bank of Ghana
is satisfied that exceptional circumstances exist,
the Bank of Ghana may approve the appointment of a
Chief Executive or Deputy Chief Executive who is not
ordinarily resident in the country.
(4) A bank or specialised deposit-taking institution
shall not appoint a person as a key management
personnel without the prior written approval of the
Bank of Ghana.
(5) A bank or specialised deposit-taking institution
shall not appoint or elect a director without the
prior written notice and subsequent approval of the
Bank of Ghana.
(6) The Bank of Ghana shall not grant approval under
subsection (1) if, in the opinion of the Bank of
Ghana, that person is not a fit and proper person to
be appointed as a Chief Executive or Deputy Chief
Executive of a bank or specialised deposit-taking
institution.
(7) Where the Chief Executive is unable to perform
the official functions of a Chief Executive due to
illness, or is absent from the country or any other
sufficient cause, the Deputy Chief Executive or a
designated key management personnel shall act as the
Chief Executive,
after notifying the Bank of Ghana as soon as
practicable.
(8) A bank or specialised deposit-taking institution
shall notify the Bank of Ghana of the changes in the
membership of the board of directors and key
management personnel of that bank or specialised
deposit-taking institution.
(9) Where the Bank of Ghana considers that a
director is not a fit and proper person to act as a
director of a bank or specialised deposit- taking
institution, the Bank of Ghana shall, after hearing
representations made by that bank or specia1ised
deposit-taking institution, direct the removal of
that director.
(10) Where the Bank of Ghana considers that a
director or a member of the key management personnel
is not a fit and proper person to hold that position
based on a change in circumstances or a notification
under subsection (2) of section 58, it shall direct
the removal of that director or key management
personnel after hearing the representations made by
that bank, specialised deposit-taking institution or
financial holding company.
(11) A bank, specialised deposit-taking institution
or fmancial holding company shall comply with a
directive issued under subsections (9) and (10).
(12) A bank, specialised deposit-taking institution
or fmancial holding company shall not outsource a
function to any other person with-out the written
approval of the Bank of Ghana.
(13) A bank, specialised deposit-taking institution
or financial holding company which contravenes a
provision of this section shall pay to the Bank of
Ghana an administrative penalty of one thousand
penalty units.
Restrictions on Lending and Investments
Prohibition of an advance against security of own
shares
61.
(1) A bank or specialised deposit-taking institution
shall not grant an advance, loan or credit facility
including a guarantee against the security of
(a)
the shares of that bank or specialised
deposit-taking institution;
(b)
the shares of the financial holding company;
(c)
the shares of a subsidiary of that bank or
specialised deposit-taking institution; or
(d)
the shares of a subsidiary of the financial holding
company.
(2) A bank or specialised deposit-taking institution
shall not issue shares that are paid for by funds
borrowed from that bank or specialised
deposit-taking institution.
(3) A transaction carried out in contravention of
subsections (1) and (2) is void.
(4) A director or key management personnel who
contravenes subsection (1) or (2) is personally
liable to pay to the Bank of Ghana an administrative
penalty of two thousand and five hundred penalty
units.
Limits on financial exposure
62.
(1) A bank or specialised deposit-taking institution
shall not take financial exposure in respect of a
person or a group of connected persons which
constitutes in the aggregate, a liability amounting
to more than twenty-five percent of the net own
funds of that bank or specialised deposit-taking
institution or a lower percentage that the Bank of
Ghana may prescribe.
(2) For purposes of subsection (1), an unsecured
financial exposure shall not exceed ten per cent of
the net own funds of a bank or specialised
deposit-taking institution.
(3) For the purpose of this section, two or more
persons consti- tute a group of connected persons if
(a)
a direct or indirect control relationship exists
among them;
(b)
any other relationship exists to the extent that the
financial soundness of any of them may affect the
financial sound- ness of the other person;
(c)
the same factors may affect the financial soundness
of some persons or the group; or
(d)
as a result of the structure of their relationship,
the other person is ultimately responsible for or
benefits from the financial exposure outstanding.
(4) For the purpose of this section, the Bank of
Ghana
(a)
may provide guidance for banks and specialised
deposit- taking institutions in determining whether
a connection exists among a group of persons; and
(b)
shall where it is uncertain that a connection
exists, determine if a connection exists on an
individual basis, based on the facts and
circumstances of a group of persons.
(5) The Bank of Ghana may prescribe that a deposit
with a bank outside the country solely for
correspondent banking purposes
(a)
be subject to a higher limit; or
(b)
be exempt from the application of subsection (1).
(6) A bank or specialised deposit-taking institution
shall within five days
(a)
report to the Bank of Ghana a fmancial exposure that
exceeds the limits of this section; and
(b)
provide a written plan for remedying the violation
as soon as practicable.
(7) The aggregate amount of all large financial
exposures of a bank or specialised deposit-taking
institution shall not at any time exceed the
percentage level of net own funds prescribed by the
Bank of Ghana having regard to the risk and
vulnerability of the financial system.
(8) For the purpose of this section, in computing
the financial exposure the following assets that may
be held as collateral shall be deducted:
(a)
cash deposit;
(b)
lien on term deposit with the bank or specialised
deposit- taking institution;
(c)
market value of treasury bills, Government
securities, bank securities; and
(d)
any other security of a similar nature approved by
the Bank of Ghana.
(9) A financial exposure shall not be considered as
secured unless it is adequately secured by a
collateral having a market value of at least one
hundred and twenty percent of the outstanding amount
of the expo- sure throughout the term of the
financial exposure.
(10) A bank or specialised deposit-taking
institution which assumes financial exposure in
contravention of this section shall pay to the Bank
of Ghana a penalty calculated as the base rate of
the bank or specialised deposit-taking institution
and a risk premium of five
percentage point of the over exposure.
(11) A director or key management personnel who
contravenes a provision of this section is
personally liable to pay to the Bank of Ghana, an
administrative penalty of two thousand five hundred
penalty units.
Financial exposure limits on a consolidated basis
63.
The financial exposure limits referred to in section
62 shall be applied on a consolidated basis to
(a)
a bank or specialised deposit-taking institution and
the subsidiaries of that bank or specialised
deposit-taking institution; and
(b)
a financial holding company and the subsidiaries of
that financial holding company.
Restrictions on transactions with an affiliate
64.
(1) A bank, specialised deposit-taking institution
or financial holding company shall not grant or
permit to be outstanding, a financial exposure in
respect of an affiliate of that bank, specialised
deposit-taking institution or financial holding
company except on terms which are non- preferential
in all respects including creditworthiness, term,
interest rate and the value of the collateral. . .
(2) A bank, specialised deposit-taking institution
or financial holding company shall not take a
financial exposure in respect of an affiliate if the
aggregate of the financial exposures to the
affiliates of the bank, specialised deposit-taking
institution or financial holding company exceeds
twenty-five percent of the net own funds.
(3) Despite subsections (1) and (2), the Bank of
Ghana may, by order, set a specific limit on a
financial exposure to an affiliate on an individual
basis, having regard to the circumstances of the
bank, specialised deposit-taking institution or
financial holding company.
(4) A bank, specialised deposit-taking institution
or financial holding company which contravenes a
provision of this section is liable to pay to the
Bank of Ghana an administrative penalty of two
thousand five hundred penalty units.
(5) A director or key management personnel who
contravenes a provision of this section is
personally liable to pay to the Bank of Ghana an
administrative penalty of two thousand five hundred
penalty units.
Restriction on purchase or transfer of certain
assets from an affiliate
and insider
65.
(1) A financial institution shall not purchase or
transfer a non- performing or low quality asset from
(a)
any of its affiliates and associates,
(b)
directors, key management personnel, or
shareholders, or
(c)
a related person or group of related persons or
their related interests
without the written approval of the Bank of Ghana.
(2) A bank or specialised deposit-taking institution
which contravenes this section is liable to pay to
the Bank of Ghana an administrative penalty of one
thousand five hundred penalty units.
(3) A transaction carried out in contravention of
subsection (1) is void.
(4) For the purpose of subsection (1), a
"non-performing asset" means a financial exposure or
asset classified as one according to the directive
of the Bank of Ghana on asset classification.
Restrictions on inter-institutional placements and
loans
66.
(1) A bank, specialised deposit-taking institution
or financial holding company which has a capital
adequacy ratio of less than the ratio prescribed by
the Bank of Ghana under section 29 shall not take an
inter-institutional placement or receive a loan or
deposit from another bank, specialised
deposit-taking institution or financial holding
company in the country without the written approval
of the Bank of Ghana.
(2) The Bank of Ghana may prescribe an additional
restriction on an inter-institutional placement,
loan and deposit for a specialised deposit-taking
institution or a particular class of specialised
deposit- taking institutions.
(3) A placement between an affiliated bank and
specialised deposit-taking institution is subject to
section 64.
(4) Where the Bank of Ghana finds that a person has
contravened a provision of this section, the Bank of
Ghana shall
(a)
in the case of a bank or specialised deposit-taking
institu- tion, order the immediate repayment, by the
bank or specialised deposit-taking institution of
the excess by which
the placement exceeds the limit prescribed in this
section and impose an administrative penalty of two
hundred and fifty penalty units on the offending
bank, specialised deposit-taking institution or
financial holding company for each day the
contravention continues; or
(b)
in the case of an individual, impose an
administrative penalty of fifty penalty units for
each day the contravention continues and the fine
shall be paid personally by each director and key
management personnel who authorised the
contravention.
Restrictions on financial exposures to an insider
67.
(1) A bank, specialised deposit-taking institution
or fmancial holding company shall not grant or
permit
(a)
an outstanding financial exposure in respect of an
insider of that bank, specialised deposit-taking
institution or financial holding company, and
(b)
the related interest of that insider,
except on terms which are non-preferential in all
respects including creditworthiness, term, interest
rate and the value of the collateral.
(2) A bank, specialised deposit-taking institution
or financial holding company shall not take a
financial exposure in respect of an insider and the
related interest of that insider if the aggregate of
the financial exposure to the insider and its
related interests exceeds ten
percent of the net own funds of that bank,
specialised deposit-taking institution or financial
holding company.
(3) For the purpose of subsection (2), an unsecured
financial exposure to an insider and the related
interests of that insider shall not exceed five per
cent of the net own funds of a bank, specialised
deposit- taking institution or financial holding
company.
(4) Subject to subsection (7) of section 62, a
financial exposure shall not be considered as
secured unless it is adequately secured by a
collateral having a market value of at least one
hundred and twenty percent of the outstanding amount
of the financial exposure throughout the term of
that financial exposure.
(5) A bank, specialised deposit-taking institution
or financial holding company shall not take a
financial exposure in respect of the related parties
and their related interests if the aggregate of the
financial exposure exceeds twenty percent of the net
own funds of that bank, specialised deposit-taking
institution or financial holding company.
(6) The board of directors of a bank or specialised
deposit- taking institution is the sole authority to
approve or sanction a financial exposure of that
bank or specialised deposit-taking institution to a
related party of that bank, specialised
deposit-taking institution or
financial holding company or the related interest of
that party.
(7) When calculating capital adequacy, a financial
exposure that is in excess of a limit referred to in
this section shall be deducted from capital.
(8) Despite subsection (7), a bank or specialised
deposit-taking institution which contravenes a
provision of this section shall pay to the Bank of
Ghana an administrative penalty of one thousand
penalty units.
(9) For the purpose of this section,
(a)
"related interest" as defined in section 156
includes other related individuals that the Bank of
Ghana may determine as appropriate; and
(b)
"non-preferential" means
terms which are not more favourable than the terms
offered under prevailing conditions to a person
other than a person referred to under subsection
(1).
Limits on financial exposures to related parties on
a consolidated basis
68.
The limit on a financial exposure to a related party
and the related interest of that party under section
67 shall be applied on a consolidated basis to
(a)
a bank or specialised deposit-taking institution and
a subsidiary of that bank or specialised
deposit-taking institution; and
(b)
a financial holding company and a subsidiary of that
financial holding company.
Restrictions on lending to staff
69.
(1) A bank or specialised deposit-taking institution
shall not lend on preferential terms to an employee
of that bank or specialised deposit- taking
institution unless the lending is part of a formally
approved employment package or employee benefit
plan.
(2) A bank or specialised deposit-taking institution
shall not grant to an employee of that bank or
specialised deposit-taking institution an unsecured
advance or credit facility, the aggregate amount of
which exceeds two years' total emoluments of that
employee.
(3) The aggregate amount of loans on preferential
terms, both secured and unsecured, by a bank or
specialised deposit-taking institu- tion to
employees shall not exceed twenty percent of the net
own funds of that bank or specialised deposit-taking
institution.
(4) A bank or specialised deposit-taking institution
which grants an advance or credit facility in
contravention of this section is liable to pay to
the Bank of Ghana,
(a)
an amount of money calculated as one-half per mille
of the over-exposure for each day that the
over-exposure persists; and
(b)
an administrative penalty of not more than one
thousand penalty units.
(5) For the purpose of calculating capital adequacy,
a financial exposure that is in contravention of
this section shall be deducted from capital.
(6) For the purpose of this section, the term
"employee" includes a key management personnel other
than an executive director.
Requirements for lending to insiders and their
related interests
70.
(1) A bank, specialised deposit-taking institution
or financial holding company shall in considering
approval of a credit facility under section 67
ensure that
(a)
the person to whom the credit facility is given has
credit worthiness which is not less than the normal
requirements of that bank or specialised
deposit-taking institution for any other person to
whom a credit facility is given;
(b)
a collateral provided will be evaluated on the same
terms and procedures normally required by that bank
or specialised deposit-taking institution for any
other person to whom a credit facility is given;
(c)
the terms and conditions of the credit facility are
not less favourable to that bank or specialised
deposit-taking institution than those normally
offered to any other person not
related to that bank or specialised deposit-taking
institution; and
(d)
the offer of the credit facility is in the interest
of the bank or specialised deposit-taking
institution.
(2) The directors of the bank or specialised
deposit-taking institution shall approve the credit
facility at a duly constituted meeting of the
directors.
(3) The approval of the credit facility shall be
recorded to form part of the minutes of the meeting
at which not less than three quarters of the
directors are present.
(4) The management of a bank or specialised
deposit-taking institution shall report to the board
of directors and to the Bank of Ghana, an exposure
to an insider or the related interests of that
insider.
(5) An exposure reported under subsection (4) shall
be classified according to the directive on asset
classification.
(6) A bank or specialised deposit-taking institution
which contravenes subsections (1) or (2) shall pay
to the Bank of Ghana an administrative penalty of
not more than two thousand penalty units.
Hanks and Specia/ised Deposit- Taking Institutions
Act, 2016
Restriction on establishment of a subsidiary company
71.
(1) A bank, specialised deposit-taking institution
or financial holding company shall not establish a
subsidiary company without the prior written
approval of the Bank of Ghana.
(2) A subsidiary company established under
subsection (I), may only engage in a permissible
activity specified in section 18 in respect of a
bank or specialised deposit-taking institution.
(3) A bank or specialised deposit-taking institution
which estab- lishes a subsidiary company contrary to
subsection (1) is liable to pay to the Bank of
Ghana, an administrative penalty of not more than
one thousand penalty units.
(4) Despite subsection (3), the Bank of Ghana shall
direct a bank or specialised deposit-taking
institution which establishes a subsidiary company
in contravention of subsection (1) to divest that
subsidiary company within a specified period.
(5) The Bank of Ghana may revoke the licence of a
bank or specialised deposit-taking institution which
does not comply with the directive issued under
subsection (4).
Limits on investment by banks or specialised
deposit-taking institutions
in respect of a subsidiary company
72.
(I) The equity capital invested by a bank or
specialised deposit- taking institution in a
subsidiary company of that bank or specialised
deposit-taking institution shall not exceed fifteen
per cent of the net own funds of the bank or
specialised deposit-taking institution.
(2) Where the bank or specialised deposit-taking
institution has more than one subsidiary company,
the aggregate of equity capital invested in the
subsidiary companies by the bank or specialised
deposit- taking institution shall not exceed
twenty-five per cent of the net own funds of that
bank or specialised deposit-taking institution.
(3) The aggregate amount of a financial exposure
including the credit facility which a bank or
specialised deposit-taking institution may take in
respect of a subsidiary of that bank or specialised
deposit-taking institution shall not exceed
(a)
in the case of a bank or specialised deposit-taking
institution which has only one subsidiary company,
twenty-five per cent of the net own funds of that
bank or specialised
deposit-taking institution; or
(b)
in the case of a bank or specialised deposit-taking
institution which has more than one subsidiary
company, thirty- five per cent of the net own funds
of that bank or specialised
deposit-taking institution.
(4) A bank or specialised deposit-taking institution
which contravenes a provision of this section is
liable to pay to the Bank of Ghana an administrative
penalty of not more than one thousand penalty units.
Limits on investment by banks or specialised
deposit-taking institutions in respect of
non-subsidiary institutions
73. (1) A bank or specialised deposit-taking
institution shall not invest or hold investments in
the share capital of a body corporate other than a
subsidiary of that bank or specialised
deposit-taking institution if the amount of the
investment exceeds ten per cent of the net own funds
of the bank or specialised deposit-taking
institution.
(2) The aggregate of the investments in the share
capital of two or more bodies corporate other than a
subsidiary of the bank or specialised deposit-taking
institution shall not exceed twenty-five percent of
the net own funds of that bank or specialised
deposit-taking institution.
(3) A bank or specialised deposit-taking institution
shall not invest or hold investments in the share
capital of a body corporate other than a subsidiary
of that bank or specialised deposit-taking
institution that represents more than five percent
interest in the body corporate.
(4) Subsection (1) does not apply to
(a)
an equity interest that has been acquired by a bank
or specialised deposit-taking institution in
foreclosure on or in place of repayment of a loan
granted by the bank or
specialised deposit-taking institution; or
(b)
an equity interest held by a bank or specialised
deposit- taking institution as an agent or trustee.
(5) A bank or specialised deposit-taking institution
shall dispose of an equity interest acquired under
subsection (4)
(a)
within one year from the date of acquisition; or
(b)
within a longer period that the Bank of Ghana may
permit.
(6) An equity interest acquired in a company
engaged in a permissible activity under section 18
other than a subsidiary of a company may exceed the
limit imposed under subsection (1) to the extent
permitted by the Bank of Ghana.
(7) A bank or specialised deposit-taking institution
which contravenes subsections (1) to (3), is liable
to pay to the Bank of Ghana, an administrative
penalty of one thousand penalty units.
Reporting of exposures
74.
(1) A bank, specialised deposit-taking institution
or fmancial holding company shall report to the Bank
of Ghana, the particulars of a large exposure.
(2) A bank, specialised deposit-taking institution
or financial holding company shall report to the
Bank of Ghana, the particulars of lending to a
related party and the related interest of that
party.
(3) A bank or specialised deposit-taking institution
shall report to the Bank of Ghana on investments
undertaken under section 73.
(4) A bank, specialised deposit-taking institution
or fmancial holding company which 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.
Asset classification, provisioning and write-offs
75.
(1) A bank or specialised deposit-taking institution
shall maintain and implement a proper policy of
non-accrual of interest on a non-performing loan and
provisioning for a bad debt and any other exposure.
(2) An asset or financial exposure of a bank,
specialised deposit- taking institution or financial
holding company shall not be written off or waived
fully or partially, without the sanction of the
board of directors and the prior written approval of
the Bank of Ghana.
(3) Despite subsection (2), the Bank of Ghana may
prescribe a minimum threshold that permits
write-offs of an asset or exposure below a certain
size which only requires the approval of the board
of directors.
(4) A bank, specialised deposit-taking institution
or financial holding company which 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.
Limits on a foreign exchange business
76. (1) The Bank of Ghana may prescribe a
restriction on a foreign exchange business of a bank
or financial holding company.
(2) A person who fails to comply with a restriction
imposed under subsection (1), is liable to pay to
the Bank of Ghana, an administrative penalty of not
more than one hundred and twenty per cent of the
gross income accruing from the business.
Powers to impose stricter prudential limits
77. (1) The Bank of Ghana may, in respect of a
prudential limit prescribed under this Act, impose a
stricter limit for banks, specialised deposit-taking
institutions or financial holding companies or a
class of specialised deposit-taking institutions or
a particular bank, specialised deposit-taking
institution or financial holding company for the
period that the Bank of Ghana considers appropriate.
(2) Despite subsection (1), the Bank of Ghana may,
by directives, vary any of the limits under sections
62 to 69 and sections 71 to 73 in cases of emergency
for the period that the Bank of Ghana considers
appropriate.
(3) For the purposes of this section, "a case of
emergency" is any situation that may pose a threat
to the stability of the financial system.
Accounts and Audit
Guidelines on accounting standards and disclosures
in financial statements
78. (1) A bank, specialised deposit-taking
institution or financial holding company shall
prepare accounts and financial statements in the
form and provide details in accordance with
(a)
internationally-accepted accounting standards; and
(b)
rules or standards based on the Basel Core
Principles as prescribed by the Bank of Ghana.
(2) A bank, specialised deposit-taking institution
or financial holding company which does not comply
with subsection (1) shall pay to the Bank of Ghana,
an administrative penalty of not more than one
thousand penalty units.
Accounting records
79.
(1) A bank, specialised deposit-taking institution
or financial holding company shall keep accounting
records in a manner that gives an accurate and
reliable account of the transactions of that bank,
specialised deposit-taking institution or financial
holding company.
(2) The accounts prepared from the records of the
bank, specialised deposit-taking institution or
financial holding company shall give a true and fair
view of the state of affairs and results of
operations for the accounting period of the bank,
specialised deposit-taking institution or financial
holding company.
(3) The accounting records of the bank, specialised
deposit- taking institution or financial holding
company shall be kept at the head office of the
bank, specialised deposit-taking institution or
financial holding company, in the country for a
period of not less than ten years.
(4) A bank, specialised deposit-taking institution
or fmancial holding company which contravenes a
provision of this section is liable to pay to the
Bank of Ghana, an administrative penalty of not more
than one thousand penalty units.
Financial statements
80.
(1) Each bank, specialised deposit-taking
institution or financial holding company shall
prepare, at the expiration of each calendar year, in
respect of the business transacted by it with
reference to that year, audited financial statements
on a solo and a consolidated basis.
(2) The financial statements referred to in
subsection (1) and the accounting records of the
bank, specialised deposit-taking institution or
financial holding company shall be audited by
qualified auditors duly appointed in accordance with
this Act.
(3) The board of directors of the bank or
specialised deposit- taking institution or financial
holding company shall approve the financial
statements referred to in subsection (1).
(4) The financial statements approved under
subsection (3) shall be signed by at least two
directors of the bank, specialised deposit-taking
institution or financial holding company or as the
Bank of Ghana may otherwise direct.
(5) A bank, specialised deposit taking institution
or financial holding company which fails to prepare
or submit financial statements in accordance with
this section is liable to pay to the Bank of Ghana,
an administrative penalty of not more than one
thousand penalty units.
Appointment of auditors
81.
(1) An auditor of a bank or specialised deposit
taking- institution shall except as provided in
subsection (2) of section 82, be appointed at an
annual general meeting of the bank or specialised
deposit-taking institution and be approved by the
Bank of Ghana in the manner and on the terms that
may be prescribed.
(2) The directors of a bank or specialised
deposit-taking institu- tion may appoint
(a)
the first auditor of the bank or specialised
deposit-taking institution; or
(b)
an auditor to act in place of the auditor who is for
any reason unable or unwilling to act until a new
auditor is appointed at an annual general meeting or
until the Bank of Ghana appoints an auditor under
subsection (2) of section 82.
(3) A person shall not be appointed an auditor of a
bank or specialised deposit-taking institution
unless that person
(a)
is a member of the Institute of Chartered
Accountants (Ghana) under the Chartered Accountants
Act, 1963 (Act 170); and
(b)
is not disqualified by an enactment in force in this
country or in any other country from being appointed
as an auditor of a body corporate.
(4) An auditor of a bank or specialised
deposit-taking institution shall hold office for a
term of not more than six years and is eligible for
re-appointment after a cooling off period of not
less than five years.
(5) The periods specified in subsection (4) may be
varied by the Bank of Ghana.
(6) A bank or specialised deposit-taking institution
which engages an auditor contrary to this section is
liable to pay to the Bank of Ghana an administrative
penalty of not more than two thousand five hundred
penalty units.
(5) A bank, specialised deposit taking institution
or financial holding company which fails to prepare
or submit financial statements in accordance with
this section is liable to pay to the Bank of Ghana,
an administrative penalty of not more than one
thousand penalty units.
Appointment of auditors
81.
(1) An auditor of a bank or specialised deposit
taking- institution shall except as provided in
subsection (2) of section 82, be appointed at an
annual general meeting of the bank or specialised
deposit-taking institution and be approved by the
Bank of Ghana in the manner and on the terms that
may be prescribed.
(2) The directors of a bank or specialised
deposit-taking institution may appoint
(a)
the first auditor of the bank or specialised
deposit-taking institution; or
(b)
an auditor to act in place of the auditor who is for
any reason unable or unwilling to act until a new
auditor is appointed at an annual general meeting or
until the Bank of Ghana appoints an auditor under
subsection (2) of section 82.
(3) A person shall not be appointed an auditor of a
bank or specialised deposit-taking institution
unless that person
(a)
is a member of the Institute of Chartered
Accountants (Ghana) under the Chartered Accountants
Act, 1963 (Act 170); and
(b)
is not disqualified by an enactment in force in this
country or in any other country from being appointed
as an auditor of a body corporate.
(4) An auditor of a bank or specialised
deposit-taking institution shall hold office for a
term of not more than six years and is eligible for
re-appointment after a cooling off period of not
less than five years.
(5) The periods specified in subsection (4) may be
varied by the Bank of Ghana.
(6) A bank or specialised deposit-taking institution
which engages an auditor contrary to this section is
liable to pay to the Bank of Ghana an administrative
penalty of not more than two thousand five hundred
penalty units.
Power of the Bank of Ghana to appoint auditors
82.
(1) A bank or specialised deposit-taking institution
which for a continuous period of three months is
without an auditor shall notify the Bank of Ghana.
(2) The Bank of Ghana shall upon being notified
under subsection (1) appoint an auditor for that
bank or specialised deposit-taking institution to
hold office until the next annual general meeting of
that bank or specialised deposit-taking institution.
(3) A bank or specialised deposit-taking institution
which fails to notify the Bank of Ghana as required
under subsection (1) shall pay to the Bank of Ghana,
an administrative penalty of not more than one
thousand penalty units.
Remuneration of auditor
83.
(1) The remuneration of an auditor of a bank or
specialised deposit-taking institution shall be
determined in accordance with the Companies Act,
1963 (Act 179).
(2) Where for any reason an auditor is appointed to
fill a temporary vacancy in the office of the
auditor of a bank or specialised deposit- taking
institution, that auditor shall be paid an equitable
proportion of the remuneration fixed under
subsection (1) as the bank or specialised
deposit-taking institution, having regard to all the
circumstances of the
case, may determine.
Right of auditor to access information
84.
(1) An auditor of a bank or specialised
deposit-taking institution shall for the purpose of
auditing have
(a)
a right of access to the accounting records, minutes
book, files and other relevant documentary evidence,
cash and securities of the bank or specialised
deposit-taking institution, and
(b)
a right to request information and explanation from
the directors, management, staff and appointed
agents of the bank or specialised deposit-taking
institution requisite for
the efficient performance of the duties of the
auditor.
(2) For the purpose of subsection (1), "accounting
records" include computerised and manual flies,
vouchers, reports and other transactions of the bank
or specialised deposit-taking institution.
Report of auditor
85. (1) An auditor of a bank: or specialised
deposit-taking institution shall submit to that
bank: or specialised deposit-taking institution and
to the Bank: of Ghana at least once every year
(a)
not later than 31st March of the ensuing year in the
case of a bank:; and
(b)
not later than 30th April of the ensuing year in the
case of a specialised deposit-taking institution,
a statutory audit report and a long form audit
report.
(2) The auditor shall state in the statutory audit
report whether or not
(a)
the accounts give a true and fair view of the state
of affairs of the bank or specialised deposit-taking
institution and the results of operations for the
period under review;
(b)
the auditor was able to obtain all the information
and explanation required for the efficient
performance of the duties of the auditor;
(c)
the transactions of the bank: or specialised
deposit-taking institution are within the powers of
the bank: or specialised deposit-taking institution;
(d)
in the opinion of the auditor, the bank or
specialised deposit-taking institution has complied
with the provisions of the Anti-Money Laundering
Act, 2008 (Act 749), the
Anti Terrorism Act, 2008 (Act 762) and the
Regulations made under these enactments; and
(e)
the bank: or specialised deposit-taking institution
has complied with the provisions of this Act.
(3) The auditor shall submit a long form audit
report on the accounts and the affairs of the bank:
or specialised deposit-taking institution generally
and in addition comment on the matters to be
specified in directives made by the Bank: of Ghana.
Meetings with auditors
86. (1) The Bank of Ghana may, periodically arrange
meetings between the Bank: of Ghana, a bank:,
specialised deposit-taking institution, or financial
holding company and its auditor to discuss matters
relevant to the supervisory responsibilities of the
Bank: of Ghana which have arisen in the course of
the statutory audit of that bank, specialised
deposit-taking institution, or financial holding
company, induding
(a)
relevant aspects of its business,
(b)
its accounting and internal control systems,
(c)
its annual financial statements, and
(d)
management letter.
(2) The Bank of Ghana may, for the purpose of
discussing confidential matters arrange meetings
with the auditors of a bank, specialised
deposit-taking institution or financial holding
company.
Duties of auditor to the Bank of Ghana
87.
(1) An auditor appointed under this Act shall inform
the Bank of Ghana if there is sufficient reason to
believe, any of the following matters:
(a)
that the bank, specialised deposit-taking
institution, or finan- cial holding company is
insolvent or there is a significant risk that the
bank, specialised deposit-taking institution or
financial holding company will become insolvent;
(b)
that material weaknesses exist that threaten the
safety and soundness of the bank, specialised
deposit-taking institution or financial holding
company; or
(c)
that the bank, specialised deposit-taking
institution or financial holding company has
contravened a
(i) prudential standard;
(ii) requirement in this Act, the Regulations or
directive issued under this Act; or
(iii) condition imposed on the licence or
registration of that bank, specialised
deposit-taking institution or financial holding
company.
(2) The auditor shall review and report on
compliance with anti-money laundering and counter
terrorist financing activities.
(3) The auditor shall verify prudential returns and
other reports of the bank, specialised
deposit-taking institution, or financial holding
company which the Bank of Ghana may periodically
require to be verified.
(4) The auditor shall submit to the Bank of Ghana a
management letter not later than
(a)
three months after the end of the financial year in
the case of a bank, and
(b)
four months after the end of the financial year in
the case of a specialised deposit-taking
institution.
(5) The management letter under subsection (4) shall
disclose the shortcomings or any contravention of
the law which may not be sufficiently fundamental to
lead to qualification of the accounts.
(6) The auditor shall perform any other functions
that the Bank of Ghana may by notice assign the
auditor for the purposes of this Act.
Special audit and additional information
88.
The Bank of Ghana may, at the expense of a bank or
specialised deposit-taking institution,
(a)
require the auditor to undertake a further audit or
provide additional information or both as the Bank
of Ghana considers necessary; or
(b)
engage an independent auditor to audit the whole or
part of the accounts of the bank or specialised
deposit-taking institution.
Termination of appointment of auditor
89.
(1) An auditor of a bank or specialised
deposit-taking institution shall cease to act as an
auditor if
(a)
the Bank of Ghana in writing requests that bank or
specialised deposit-taking institution to revoke the
appointment of that auditor;
(b)
that auditor or a member of the firm or
establishment of the auditor becomes a director of
that bank, specialised deposit-taking institution or
financial holding company;
(c) that auditor resigns by notice in writing
to the bank or specialised deposit-taking
institution;
(d)
that auditor ceases to qualify under subsection (3)
of section 81 for appointment as auditor of that
bank or specialised deposit-taking institution;
(e)
that auditor is otherwise
removed by a decision taken at an annual general
meeting of that bank or specialised deposit- taking
institution; or
(f)
that auditor has served as auditor for the bank or
specialised deposit-taking institution for the
preceding six years.
(2) A bank or specialised deposit-taking institution
shall comply with a request of the Bank of Ghana to
revoke the appointment of an auditor.
(3) An auditor who does not comply with subsection
(1), commits an offence and is liable on summary
conviction to a fine of not less than one hundred
and twenty-five penalty units and not more than two
hundred and fifty penalty units or to a term of
imprisonment of not less than one year and not more
than two years or to both.
(4) The Bank of Ghana, a bank or specialised
deposit-taking institution or any other person
concerned may report the conduct of the auditor to
the Institute of Chartered Accountants (Ghana) or a
successor body for disciplinary action.
Display of financial statements
90.
(1) A bank or specialised deposit-taking institution
shall exhibit at each of its branches or agencies in
a conspicuous place throughout the year, a copy of
the last audited financial statement in respect of
the operations of the bank or specialised
deposit-taking institution.
(2) A bank or specialised deposit-taking
institutions shall
(a)
in the case of a bank not later than three months
after the end of its financial year; or
(b)
in the case of a specialised deposit-taking
institution not
later than four months after the end of each
financial year, furnish the Bank of Ghana with a
copy of its audited financial statements together
with the auditor's statutory and long form audit
reports; and cause the financial statements together
with the auditors' reports to be published on its
website if any and in at least two daily newspapers
of national circulation.
(3) A bank or specialised deposit-taking institution
which 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.
Powers of regulation and supervision
91.
(1) Without limiting section 3, the powers of
regulation and supervision of the Bank of Ghana are
to regulate and supervise
(a)
banks and specialised deposit-taking institutions on
a solo basis;
(b)
financial holding companies on a solo basis; and
(c)
financial groups on a consolidated basis.
(2) Where a financial holding company is part of a
wider corporate group, the Bank of Ghana may
(a)
obtain information to permit oversight of the impact
on a bank, specialised deposit-taking institution,
or financial holding company of membership in the
wider group; and
(b)
take the necessary action to protect against undue
risks aris- ing from that relationship.
Directives
92.
(1) The Bank may issue directives to banks,
specialised deposit- taking institutions or
financial holding companies generally or to a class
or classes of banks, specialised deposit-taking
institutions or financial holding companies where
the Bank of Ghana is satisfied that
(a)
it is necessary to secure the proper management of a
bank, specialised deposit-taking institution or
financial holding company generally;
(b)
it is necessary to prevent the affairs of banks,
specialised deposit-taking institutions or financial
holding companies being conducted in a manner
detrimental to the interest of
depositors and other stakeholders or prejudicial to
the interests of the banks or specialised
deposit-taking institutions or financial holding
companies;
(c)
it is necessary to maintain the overall stability of
the financial system in the country; or
(d)
it is necessary to give full effect to the
provisions of this Act.
(2) Without limiting subsection (1) the Bank of
Ghana may issue directives
(a)
to provide for
(i) the licensing of banks and specialised deposit
taking institutions;
(i) the minimum level of capital for banks,
specialised deposit-taking institutions and
financial holding
companies;
(ii) the prescription of prudential norms on asset
quality, bad debt and write-offs;
(iii) the liquidity reserve requirements and net
open position requirements;
(iv) the computation of on-going capital adequacy
requirements for banks, specialised deposit-taking
institutions and financial holding companies;
(v) the lending limits on credits extended to
insiders;
(vi) the limitations for advances or credit
facilities to a single borrower;
(vii) the rules and regulations against the use of
banks, specialised deposit-taking institutions and
financial holding companies for money laundering,
terrorist
financing and the financing of proliferation of
weapons of mass destruction;
(viii) the classification of entities as banks or
specialised deposit-taking institutions for the
purposes of this Act;
(ix) the reporting requirements to the Bank of
Ghana;
(x) the issue, form and content of advertisements
for deposits;
(xi) consumer protection principles, rules and
require- ments and their enforcement; and
(xii) anything required under or authorised by this
Act to be provided for by directives;
(b)
to address specific characteristics of specialised
deposit- taking institutions to modify the
application of a provision of this Act to a
specialised deposit-taking institution; or
(c)
to exempt a specialised deposit-taking institution
or specific categories of specialised deposit-taking
institution from the application of a provision of
this Act.
(3) The Bank of Ghana may modify a directive issued
under sub- sections (1) and (2) as it considers fit
and a bank, specialised deposit- taking institution
or financial holding company shall comply with the
modification.
(4) The Bank of Ghana shall prescribe the procedure
for the adoption of directives under subsection (1).
(5) The Bank of Ghana shall give notice of the
proposed directive to the public for the public to
comment on the proposed directive in accordance with
procedure specified under subsection (4) before the
proposed directive is adopted in the final form,
unless the Bank of Ghana considers that the notice
and procedure are impractical or contrary to
public interest.
(6) A directive shall indicate the specific
statutory provision authorising the directive.
(7) The Bank of Ghana shall consider all material
comments received under subsection (5) and provide a
written explanation for the comments that were
incorporated into the final directive or otherwise.
(8) In addition to any penalty provided under the Anti-Money
Laundering Act, 2008 (Act 749) a person who
contravenes a directive issued under this section is
liable to pay to the Bank of Ghana an administrative
penalty of not less than two thousand penalty units
and not more than ten thousand penalty units.
(9) The Bank of Ghana may in addition to the penalty under sub-
section (8) impose any other penalty or take any
remedial action that the Bank of Ghana considers
appropriate.
Information and periodic returns
93.
(1) The Bank of Ghana shall, for the purposes of supervision,
require a bank, specialised deposit-taking
institution, financial holding company, or a member
of a financial group to submit any information or
data relating to its assets, liabilities, income,
expenditure,
affairs, or any other matter that the Bank of Ghana
may require.
(2) The Bank of Ghana may prescribe the
(a)
details of the information required,
(b)
form in which the information is to be reported,
and
(c)
period within which the report is to be returned to the Bank of
Ghana.
(3) The Bank of Ghana may impose an administrative penalty of not
more than five hundred penalty units on a bank,
specialised deposit- taking institution or financial
holding company and on the responsible key
management personnel for,
(a)
non-submission;
(b)
incomplete submission;
(c)
delayed submission; or
(d)
inaccurate submission,
of the required information, data, statements or returns and for
each day that the default continues a further
penalty of fifty penalty units in respect of the
default.
Examination
94.
(1) The Bank of Ghana shall carry out examinations of the
operations and affairs of each bank, specialised
deposit-taking institution and financial holding
company.
(2) The examination shall be carried out at the time and
frequency that the Bank of Ghana may consider
appropriate, taking into account its evaluation of
micro-prudential and macro-prudential concerns and
the risks posed by the institution.
Investigation or
scrutiny
95.
(1) Without limiting the power to examine banks, specialised
deposit-taking institutions, and the financial holding companies under section 94,
the Bank of Ghana may without prior notice carry out
investigations or scrutiny into a specific matter or
activity or office relating to the affairs of a
bank, specialised deposit- taking institution or
financial holding company.
(2) A Bank of Ghana may carry out an examination of the
operations and affairs of any member of a financial
group of which a bank or specialised deposit-taking
institution is a member whenever the Bank of Ghana
determines that the examination is appropriate to
carry out its responsibilities under this Act.
(3) The Bank of Ghana may appoint qualified accountants or other
professionals to act as its agent in carrying out
investigations under this section.
Power of examiners
96.
(1) A person who is authorised by the Bank of Ghana to examine,
investigate or for any other purpose, shall have a
right of access to the books and records of the
bank, specialised deposit-taking institution,
financial holding company or any other member of the
financial group.
(2) For the purpose of subsection (1), the books and records
include documents, minute books, customer files,
personnel files, cash
and securities and information in an electronic
medium.
(3) The bank,
specialised
deposit-taking institution, financial holding
company or any other member of the financial group
shall cooperate and assist that person.
(4) A person who is authorised by the Bank of Ghana to examine,
investigate or for any other purpose, may call upon,
(a)
a director, key management personnel or any other employee of a
bank, or specialised deposit-taking institution, or
financial holding company;
(b)
any other member of the financial group;
(c)
an external auditor;
(d)
a person whom the relevant entity has outsourced any of its
functions; or
(e)
a person with information regarding the relevant entity
to promptly furnish that authorised person with any information
and explanation which that authorised person may
consider necessary.
(5) A person who is requested to provide information or an
explanation under subsection (4), shall comply with
the request.
(6) A person who is authorised by the Bank of Ghana may, if that
person considers it necessary in the course of an
examination or investigation, order any person
mentioned in subsection (4), orally or in writing,
to attend before that authorised person and testify
in relation to a matter under examination or
investigation and the official or employee
shall comply with the order.
(7) A person who fails to comply with a provision of this section
is liable to pay to the Bank of Ghana an
administrative penalty of not more than one thousand
penalty units.
Taking custody of records
97. (1) An official of the Bank of Ghana, who is authorised to
carry out an examination or investigation under
section 94 or 95 may, if that official considers it
necessary, by an order in writing issued to the
chief executive of the bank, specialised
deposit-taking institution, financial holding
company or any other member of the financial group
that is the subject of the examination or
investigation, take custody of the records,
files or any other documents relevant to the
examination or investigation after giving to the
entity due acknowledgement in writing.
(2) The official of the Bank of Ghana authorised under subsection
(1) shall take reasonable care to protect that
document in the custody of that official and account
for its disposal.
V~cationofunonnation
98. (1) The Bank of Ghana may authorise any official of the Bank
of Ghana, qualified auditor or other professional to
verify any return, information or data furnished to
that official, qualified auditor or other
professional by a person under this Act and report
on its accuracy.
(2) A bank, specialised deposit-taking institution, financial holding company
or any other member of the financial group being
examined or investigated under section 94 or 95
shall provide prompt access and facilities to the
authorised official or auditor to carry out the task
of the authorised official or auditor.
(3) A bank, specialised deposit-taking institution, financial
holding company or any other member of the financial
group which fails to provide prompt access and
facilities to the authorised official is liable to
pay to the Bank of Ghana an administrative penalty
of not more than one thousand penalty units.
Examination reports
99. (1) Where an examination has been conducted by the Bank of
Ghana under section 94, the Bank of Ghana shall
furnish a copy of the report to the entity examined
and call upon the entity to provide within
forty-five days from the date of the receipt of the
report, a written explanation on the findings
contained in the report and action taken,
within a
specified time.
(2) The board of directors shall consider the report at a meeting
convened subsequent to the receipt of the report on
the examination conducted by the Bank of Ghana and
the Head of the appropriate supervisory structure or
the representative may be invited to attend.
(3) The Head of the appropriate supervisory structure may request
a meeting with the board of the examined entity to
discuss the examination or investigation report.
(4) An entity which fails to submit an explanation under subsec-
tion (1) is liable to pay to the Bank of Ghana an
administrative penalty of not more than one thousand
penalty units.
Follow-up action on examination and other supervisory reports
100.
(1) The Bank of Ghana may, after examining an explanation under
section 99 or based on other supervisory reports,
issue an instruction to the bank, specialised
deposit -taking institution, financial holding
company or other member of a financial group that
was the subject of the examination or supervisory
report to take the remedial action that the Bank of
Ghana may specify within a stated period of time and
the entity concerned shall comply with the
instruction.
(2) Where an entity fails to comply with an instruction issued
under subsection (1), the Bank of Ghana may take
remedial action under section 101.
(3) An entity which fails to comply with an instruction under
subsection (1), is liable to pay to the Bank of
Ghana, an administrative penalty of not more than
two thousand penalty units.
Appointment of advisor
101. (1) The Bank of Ghana may, if it considers it necessary to
improve the affairs of a bank, specialised
deposit-taking institution or financial holding
company, appoint a competent person as advisor to
the management of the bank, specialised
deposit-taking institution or financial holding
company at the expense of that bank, specialised
deposit-taking institution or financial holding
company.
(2) The Bank of Ghana shall give a hearing to the bank,
specialised deposit-taking institution or financial
holding company before issuing the order of
appointment of an advisor unless it considers that
the consequent delay in action would not be in the
interest of the bank, specialised deposit-taking
institution or financial holding company.
(3) A bank, specialised deposit-taking institution or financial
holding company which is served with an order
appointing an advisor shall comply with the order
and extend full co-operation to the advisor.
(4) An advisor appointed under this section is entitled to attend
the meetings of the board of directors of the bank,
specialised deposit- taking-institution or financial
holding company or committees of the bank,
specialised deposit-taking institution or financial
holding company and to participate in deliberations.
(5) The views of the advisor shall be recorded in the minutes of
the meetings but the advisor shall not vote on a
matter for determination by the meeting.
(6) An advisor appointed under this section
(a)
shall hold office for the period that the Bank of Ghana may
specify, and
(b)
shall furnish the Bank of Ghana with a status report on the bank,
specialised deposit-taking institution or financial
holding company as frequently as the Bank of Ghana
may
determine.
Remedial measures for banks, specialised deposit-taking
institutions or financial holding companies
102. (1) Where the Bank of Ghana determines, after an examination
under section 94 or 95 or otherwise based on
information at its disposal, that a bank,
specialised deposit-taking institution or financial
holding company
(a)
has failed to comply with a provision of this Act, the Regu-
lations or directives issued under this Act;
(b)
has been engaging in an unsafe or unsound practice;
(c)
has been conducting its affairs in a manner detrimental to the
interests of its depositors and creditors; or
(d)
has violated any condition or restriction attached to a licence
or registration issued by the Bank of Ghana,
the Bank of Ghana may take any of the actions specified in
subsection (2).
(2) Pursuant to subsection (1), the Bank of Ghana may
(a)
issue a written warning to the bank,
specialised deposit- taking institution or financial
holding company;
(b)
issue an order to the bank, specialised
deposit-taking institution or financial holding
company to take the remedial action that the Bank of
Ghana may specify within a
stated period and the bank, specialised deposit-taking
institution or financial holding company shall
comply with the order;
(c)
require the bank, specialised deposit-taking institution or
financial holding company to cease the violation or
unsafe or unsound practice;
(d)
take the affirmative action that the Bank of Ghana considers
necessary to eliminate the grounds for the order;
(e)
conclude a written agreement with the board of directors of the
bank, specia1ised deposit-taking institution or financial holding
company to provide for a programme of remedial
action;
(f)
impose an administrative penalty on the bank, specialised
deposit-taking institution or financial holding
company of an amount of not more than one hundred
penalty units for
each day that the violation or unsafe or unsound
condition continues;
(g)
appoint an advisor for the bank or specialised deposit- taking
institution or financial holding company in accor-
dance with section 101; or
(h)
revoke the licence of the bank, specialised deposit-taking
institution or the registration of the financial
holding company.
(3) Remedial actions under subsection (2) may include any of the
following:
(a)
prohibiting the bank or specialised deposit-taking institution
from receiving fresh deposits or renewing the
existing deposits;
(b)
prohibiting the bank, specialised deposit-taking institution or
financial holding company from further lending or
taking further financial exposures, including
investments,
or capital expenditure;
(c)
requiring the bank, specialised deposit-taking
institution,
or financial holding company, or any of the
subsidiaries of the bank, specialised deposit-taking
institution or financial holding company to suspend
for a specified period, alter, reduce, or terminate any activity that the Bank of Ghana
determines has caused material losses to the bank or
specialised deposit-taking institution or financial
holding company;
(d)
requiring that the bank, specialised deposit-taking institution,
or financial holding company divests itself of or
liquidates any subsidiary;
(e)
restricting or prohibiting transactions with affiliates;
(f)
restricting payment of bonuses or excessive compensation to any
director or key management personnel;
(g)
prohibiting the bank, specialised deposit-taking institution or
financial holding company from paying a dividend on
its equity capital or rights issue or bonus shares
to share- holders or to any person claiming under
their authority;
(h)
suspending or removing from office the chief executive of the
bank, specialised deposit-taking institution, or
financial holding company or restricting the powers
of the chief executive officer;
(i)
removing any or all of the directors on the board of directors of
the bank, specialised deposit-taking institution or financial holding
company or key management personnel or restricting
their powers;
(j)
revoking the licence issued to the bank or specialised deposit-taking
institution or the registration of the financial
holding company permitting it to control a bank or
specialised
deposit-taking institution;
or
(k)
any other action necessary to eliminate the basis for requiring
remedial action.
(3) The powers of the Bank of Ghana to take action under this
section are in addition to any other administrative
penalty, that may be imposed by the Bank of Ghana
under this Act.
(4) The Ghana Deposit
Protection Corporation shall be notified immediately
the Bank of Ghana initiates remedial measures
against a bank or specialised deposit-taking
institution.
Remedial measures for directors, key management personnel, and
significant shareholders
103. (1) Where the Bank of Ghana determines that a relevant person has
(a)
contravened a provision of this Act, the Regulations or
\directives issued under this Act;
(b)
contravened any condition or restriction attached to a licence
issued by the Bank of Ghana; or
(c)
engaged in an unsafe or unsound practice, the Bank of Ghana may
take any of the following actions:
(d)
issue an order to the relevant person to take the remedial action
as the Bank of Ghana may specify within a stated
period and the relevant person shall comply with the
order;
(e)
impose an administrative penalty of not more than one hundred
penalty units on the relevant person for each day
that the contravention continues except that the
fines shall
be of similar amount for entities with comparable
total assets for the same type of contravention;
(f)
require the relevant person to reimburse the bank, specialised
deposit-taking institution, or financial holding
company for losses caused by the contravention;
(g)
prohibit the relevant person from direct or indirect exercise of
voting rights attached to shares of the bank,
specialised deposit-taking
institution or financial holding company;
(h)
suspend the relevant person from office or declare that the
relevant person is no longer a fit and proper person;
or
(i)
prohibit the payment of capital distributions or dividends to the
relevant person.
(2) Where the
Bank of Ghana
determines that a relevant person has
(a)
willfully or repeatedly caused a contravention of a provision of
this Act, the Regulations or directives issued under
this Act following a written warning or an order
from the Bank of Ghana under section 102;
(b)
been engaging in an unsafe or unsound practice that
has resulted in a material loss to the bank,
specialised deposit- taking institution or financial
holding company or financial gain to that relevant
person; or
(c)
been conducting its affairs in a manner detrimental to the
interests of its depositors and creditors,
the Bank of Ghana may in respect of the actions referred to in
subsection (1), issue an order taking any of the
following actions:
(d)
direct the dismissal of the relevant person from the bank,
specialised deposit-taking institution, or financial
holding company;
(e)
prohibit the relevant person from serving in or engaging in the
deposit-taking business for a stated period;
(j)
impose an administrative penalty of not more than one hundred
penalty units for each day that the contravention
continues;
or
(g)
require the relevant person to dispose of all or any part of the
direct or indirect holding or interest in the bank,
specialised deposit taking institution, or financial
holding company or cease to hold a significant
interest in it.
(3) If the relevant person is charged with a criminal offence,
(a)
the Bank of Ghana may issue an order temporarily suspending the
relevant person from the bank, specialised deposit-
taking institution,
or financial holding company; and
(b)
if applicable, suspend the exercise of voting rights of shares in
the bank, specialised deposit-taking institution,
or financial holding company by the relevant person,
pending the determination of the criminal case.
(4) A dismissal of the criminal case or an acquittal on the
merits, shall not preclude the
Bank of Ghana from
taking any enforcement action authorised by this Act with respect to the relevant person.
(5) A relevant person shall not hold any position in an affiliate
of a bank, specialised deposit-taking institution or financial holding com-
pany without the prior written approval of the Bank
of Ghana,
if
that relevant person
is the subject of a directive
or order of
the Bank of Ghana
(a)
suspending or removing the relevant person from a posi-
tion in that bank, specialised deposit-taking
institution or financial holding company; or
(b)
prohibiting the exercise of voting rights in shares
of the bank, specialised deposit-taking institution,
or financial holding company,
or requiring the person to dispose of the
holding or interest of that relevant person.
(6) The powers of the Bank of Ghana to take action under this
section are in addition to any other specific powers
and penalties that may be imposed by the Bank of
Ghana under this Act.
(7) For the purpose of this section, "relevant person" means a
director, key management personnel or employee or
significant share-
holder of a bank, specialised deposit-taking
institution or financial holding company. Prompt
corrective action for adequately capitalised banks,
specialised deposit-taking institutions, or
financial holding companies suffering material
losses
104. (1) Where a bank, specialised deposit-taking institution or
financial holding company which complies with the
capital requirements prescribed in sections 28 to 31
has incurred or is likely to incur material losses
within any financial year, the Bank of Ghana shall
take the following actions:
(a)
prohibit the bank, specialised deposit-taking institution, or
financial holding company from declaring and
distributing any dividends which are, in the opinion
of the Bank of
Ghana, likely to cause it not to comply with the
capital requirements prescribed in sections 28 to
31, and
(b)
undertake more frequent examination of that bank,
specialised deposit-taking institution, or financial
holding company.
(2) In addition to the actions prescribed in subsection (1), the
Bank of Ghana may require the directors or key
management personnel of the bank, specialised
deposit-taking institution or financial holding
company to provide a written explanation detailing
the causes of the losses and the measures to be
taken by the bank, specialised deposit-taking
institution, or financial holding company to rectify
the position and avert future losses.
(3) The Bank of Ghana shall give notice to the Ghana Deposit
Protection Corporation immediately the Bank of Ghana
initiates corrective action against a bank or
specialised deposit-taking institution.
Prompt corrective action for undercapitalised banks, specialised
deposit- taking institutions or financial holding
companies
105.
(1) A bank, specialised deposit-taking institution,
or financial holding company is undercapitalised if that bank, specialised
deposit- taking institution, or financial holding
company does not comply with the capital
requirements prescribed in sections 28 to 31.
(2) Where a bank, specialised deposit-taking institution, or
financial holding company is undercapitalised, the
Bank of Ghana shall take the following actions:
(a)
all the actions prescribed in subsection (1) of section 104;
(b)
require the bank,
specialised
deposit-taking institution or financial holding
company to submit to the Bank of Ghana within
forty-five days, a capital restoration plan
acceptable
to the Bank of Ghana to restore the bank,
specialised deposit-taking institution or financial
holding company to capital adequacy as prescribed in
sections 28 to 31 within one hundred and eighty days
of making that order; and
(c)
prohibit the bank, specialised deposit-taking institution,
or financial holding company from awarding any
bonuses,
or increments in the salary, emoluments and other benefits
to all directors and key management personnel.
(3) In addition to the actions prescribed under subsection (2),
the Bank of Ghana may appoint a person,
suitably
qualified and competent in the opinion of the Bank
of Ghana,
to advise and assist the bank,
specialised
deposit-taking institution or financial holding
company in designing
and implementing the capital restoration plan.
(4) The person appointed under subsection (3),
shall regularly report to the Bank of Ghana on the
progress of the capital restoration plan.
(5)
Where a bank specialised deposit-taking
institution or a financial holding company has been
required by the Bank of Ghana to submit a capital restoration plan or to add more
capital,
and it fails, refuses or neglects to comply or to implement the capital
restoration plan, the Bank of Ghana shall
(a)
prohibit the bank or specialised deposit-taking institution from
opening new branches;
(b)
restrict the bank, specialised deposit-taking
institution or financial holding company from
engaging in new business;
(c)
impose restrictions on growth of assets or liabilities of the
bank, specialised deposit-taking institution or
financial holding company as it considers fit; or
(d)
restrict the rate of interest on all interest earning deposits
payable by the bank or specialised deposit-taking
institution to the rates that the Bank of Ghana
shall determine.
(6) In addition to the actions prescribed in subsection (2) the
Bank of Ghana may
(a)
direct the removal of officers of the bank, specialised
deposit-taking institution or financial holding
company responsible for the non-compliance; and
(b)
require the bank, specialised deposit-taking institution or
financial holding company to take any other action
that the Bank of Ghana may deem necessary to rectify
the capital
deficiency.
(7) The Bank of Ghana shall give notice to the institution
responsible for deposit protection immediately the
Bank of Ghana initiates corrective action against a
bank or specialised deposit-taking institution.
Prompt corrective action for significantly undercapitalised
banks, specialised deposit-taking institutions, or
financial holding companies
106. (1) Where a bank, specialised deposit taking institution, or
financial holding company is significantly
undercapitalised, the Bank of Ghana shall
immediately take any or all of the following actions
(a)
take any of the actions prescribed in section 105; or
(b)
enter into an agreement with the board of directors of the bank,
specialized deposittaking institution or financial
holding company to require it to rectify the
significant
undercapitalisation within ninety days, and to
restore capital adequacy within one hundred and
eighty days or within a shorter period that the Bank
of Ghana shall require.
(2) In addition to the actions prescribed in subsection (1), the
Bank of Ghana may prohibit the bank, specialised
deposit-taking institution or financial holding
company from engaging in new "off-balance sheet"
transactions.
(3) If at any time,
(a)
after the period specified in paragraph (b) of subsection
(1), the bank, specialised deposit-taking institution or financial
holding company has failed to raise its capital to
the levels necessary to rectify its significant
undercapitalisation; or
(b)
before the end of the period specified in paragraph (b) of
subsection (1), the financial position of the bank, specialised deposit-taking
institution or financial holding company
continues to deteriorate,
the Bank of Ghana shall without having to wait for the expiry of
that period, place the bank, specialised deposit
-taking institution or financial holding company
into official administration in accordance with
sections 107 to 122 or revoke its licence or
registration and initiate receivership process in
accordance with sections 123 to 139.
(4) A "significantly undercapitalised bank, specialised deposit
taking institution,
or financial
holding company" means a bank, specialised deposit
taking institution, or financial holding company
which does not hold at least fifty percent of any of
the capital requirements prescribed in sections 28
to 31.
(5) This section shall not be construed so as to preclude the
Bank of Ghana from taking action under any other
provision of this Act.
(6) The Bank of Ghana shall give notice to the Ghana Deposit
Protection Corporation immediately the Bank of Ghana
initiates corrective action against a bank or
specialised deposit-taking institution.
Official
Administration
Grounds for appointing an official administrator
107.
(1) The Bank of Ghana may appoint an official administrator
for a bank or a specialised deposit-taking
institution where
(a)
the Bank of Ghana determines that that bank or specialised
deposit-taking institution has
(i) contravened a provision of this Act, the Regulations,
directives or orders issued under this Act;
(ii) engaged in any unsafe or unsound practice,
in a manner as to weaken the condition of the bank
or specialised deposit-taking institution; or
(iii) seriously jeopardised the interest of depositors or
dissipated assets of the bank or specialised
deposit- taking institution;
(b)
the capital adequacy ratio of that bank or specialised deposit-
taking institution falls below fifty percent of the
minimum required under section 29 or its unimpaired
paid up capital falls below fifty percent of the
minimum required under section 28;
(c)
the Bank of Ghana has reasonable cause to believe that that bank
or specialised deposit-taking institution or its
directors, key management personnel, or significant
shareholders have engaged in or are engaging in
illegal activities in a manner likely to jeopardise
the interest of depositors;
(d)
the Bank of Ghana determines that that bank or specialised
deposit-taking institution is in an unsafe or
unsound condition to transact business and the bank
or specialised
deposit-taking institution or its directors or key
management personnel are unable to promptly improve
the condition;
(e)
that bank or specialised deposit-taking institution fails in any
manner to cooperate with the Bank of Ghana or its
examiners to enable the Bank of Ghana perform its
supervisory
responsibilities, including through concealment or
failure to submit for inspection any of the books,
documents or records of the bank or specialised
deposit taking institution;
(f)
that bank or specialised deposit-taking institution or the
directors of that bank, specialised deposit-taking
institution, key management personnel, employees, or
significant share- holders fail to comply with an
order of the Bank of Ghana under sections 102 to
106; or
(g)
that bank or specialised deposit-taking institution by a
resolution of the directors or shareholders,
requests the appointment of an official
administrator.
(2) Where the Bank of Ghana takes a decision to appoint an
official administrator for a bank or specialised
deposit-taking institution, the Bank of Ghana shall,
by notice in writing setting out the reasons for the
decision, inform that bank or specialised
deposit-taking institution of the decision.
(3) A bank or specialised deposit-taking institution may remain
in official administration for a period of six
months in the first instance;
and for two consecutive periods of three months
each.
(4) The decision under subsection (2) shall take effect on the
date specified in the notice.
(5) The Bank of Ghana may remove the official administrator
before the end of the period specified in subsection
(3) and appoint a replacement.
(6) The Bank of Ghana shall ensure that the bank or specialised
deposit-taking institution remains under the control
of the duly appointed official administrator during
the period of the official administration.
(7) Section 59 on disclosure of interest applies to an official
administrator except that any obligation to report
to the board of directors shall mean an obligation
to report to the Bank of Ghana.
(8) A transaction involving the bank or specialised deposit-
taking institution in official administration in
which the official administrator has a material
interest or relationship in the matter shall be
engaged in only with the prior written approval of
the Bank of Ghana.
(9) If the official administrator fails to seek approval under
sub- section (8), the transaction may be set aside and the Bank of Ghana shall
terminate the appointment of that official
administrator.
(10) The Bank of Ghana shall immediately notify the institution
responsible for deposit protection of the
commencement,
suspension or cessation of an official
administration against a bank or specialised
deposit-taking institution.
General powers of the official administrator
108.
(1) The powers,
functions
and responsibilities of the shareholders, directors, and key management personnel of a bank or specialised
deposit-taking institution shall be vested in the
official administrator.
(2) The official administrator may request the
shareholders,
directors
or key management personnel to carry out any
activity under this Act.
(3) An action or decision
taken by or on behalf of the bank or specialised deposit-taking institution during an official
administration shall be null and void,
unless that action or decision is taken by or under
the authority of the official administrator.
(4) The official administrator shall have exclusive powers to
manage and operate a bank or specialised
deposit-taking institution in accordance with the
instructions, directives, and guidelines of the Bank
of Ghana.
(5) The official administrator may take any action necessary or
appropriate to
(a)
carry on the business of a bank or specialised deposit-taking
institution;
(b)
preserve and safeguard the assets and property of a bank or
specialised deposit-taking institution; or
(c)
implement a plan of action that has been approved by the Bank of
Ghana with respect to that bank or specialised
deposit-taking institution.
(6) The official administrator may employ, at the expense of the
bank or specialised deposit-taking institution in
official administration, independent attorneys,
accountants and consultants to assist the official
administrator, on the terms approved by the Bank of
Ghana.
(7) The official administrator may delegate powers or duties to
another person in accordance with the instructions
issued by the Bank of Ghana.
Oversight of official administrator by the Bank of Ghana
109.
The official administrator shall act in accordance with the
instructions and guidance given by the Bank of Ghana
at any time and shall be accountable only to the
Bank of Ghana.
Suspension of dividends
110.
The official administrator shall immediately suspend the payment
of any dividends or other form of capital
distribution to share- holders and any payment to
directors other than for salaries or services
provided to the bank or specialised deposit-taking
institution.
Moratorium and effect of official administration on proceedings
111. (1) The Bank of Ghana may impose a moratorium suspending some or
all payments by a bank or specialised deposit-taking
institution in official administration, except for payments to central clearing counterparties and to
payment, settlement and clearing systems.
(2) A person shall not without the consent of the Bank of Ghana
(a)
commence or continue a proceeding in a court against a
bank or specialised deposit-taking institution in
official administration;
(b)
exercise rights under a mortgage, charge, or other security over
the property of a bank or specialised deposit-taking
institution in official administration; or
(c)
issue any execution,
attach any debt, or otherwise enforce or seek to enforce any judgment or order
obtained in respect of a bank or specialised deposit
taking institution
in official administration.
(3) The Bank of Ghana may waive the application of subsection (2)
to any creditor or class of creditors.
Suspension of rights of termination
112. A right or obligation of a third party under any contract to
which a bank or specialised deposit-taking
institution in official administration is a party
shall not be terminated, accelerated,
or modified solely because of the appointment of the
official administrator or any action taken by the
official administrator.
Control of the bank or specialised deposit-taking institution by
official administrator
113. (1) The official administrator shall on appointment to
office secure the properties,
offices,
assets,
books and records of the bank or specialised deposit-taking
institution involved, and may take the necessary
steps including
(a)
changing the locks to the buildings and offices of the bank or
specialised deposit-taking institution to prevent
unauthorised access;
(b)
changing the passwords to the computers of the bank or
specialised deposit-taking institutions and granting access only to a limited number of employees;
and
(c)
issuing to authorised employees a new type of entrance pass
to the premises of the bank or specialised
deposit-taking institution and controlling the
access of other employees
to those premises.
(2) The official administrator shall in the course of the
official
administration have unrestricted access to,
and control over the properties,
offices,
assets and the books of account and other records of
the bank or specialised deposit-taking institution.
(3) A law enforcement agency shall, on request,
assist the official administrator to gain access to
any premises of the bank or specialised
deposit-taking institution to gain control over and
to secure the properties, offices, assets, books and records of the bank or specialised deposit- taking
institution.
(4) The directors,
key management personnel and employees of the bank
or specialised deposit-taking institution shall
(a)
cooperate fully with and assist the official administrator,
and
(b)
make available to the official administrator all records and
documentation pertaining to the bank or specialised
deposit- taking institution and any additional
information or report
requested by the official administrator.
(5) A person who does not comply with subsection (4) or otherwise
obstructs the Bank of Ghana or an official
administrator in the performance of functions under
sections 107 to 122 is liable on summary conviction
to a fine of not less than one thousand two hundred
and fifty penalty units and not more than two
thousand five hundred penalty units
or to a term of imprisonment of not less than one
year and not more
than two years or to both.
Inventory and plan of action to resolve the bank or specialised
deposit- taking institution
114.
(1) An official administrator shall not later than thirty days
after the appointment of that official
administrator, prepare and deliver to the Bank of
Ghana an inventory of the assets and liabilities of
the bank or specialised deposit taking institution
involved.
(2) The inventory under subsection (1) shall itemise the assets
according to the different risk profiles and
classify the non-performing
loans.
(3) An official administrator shall not later than ninety days
after the appointment of that official
administrator, prepare and deliver to the Bank of
Ghana a report on the financial
condition and future prospects of the bank or
specialised deposit-taking institution.
(4) The official administrator shall include in the report under
subsection (3)
(a)
an assessment of the amount of assets likely to be realised in a
liquidation of the bank or specialised
deposit-taking institution;
(b)
a proposed plan of action to make the bank or specialised
deposit-taking institution comply with the law by
carrying out a plan of corrective actions that may
include
(i) a capital increase; or
(ii) measures that may be taken to minimise disruption to
depositors and preserve the stability of the
financial system, if the bank or specialised
deposit-taking institution cannot be rehabilitated.
(5) The official administrator shall promptly provide any addi-
tional report or information requested by the Bank
of Ghana.
Capital increase by existing shareholders
115.
(1) On the basis of the report produced under section 114 and
with the approval of the Bank of Ghana, the official
administrator may for the purpose of increasing the
capital of the bank or specialised deposit-taking
institution through the issuance of new shares to
existing shareholders, take the following actions:
(a)
determine the extent oflosses and prepare the financial
statements of the bank or specialised deposit-taking
institution covering the amount of the losses,
profits, reserves and capital; and
(b)
notify existing shareholders of the amount of additional capital
needed to bring the capital of the bank or
specialised deposit-taking institution into
compliance with all capital
requirements and allow such shareholders to
subscribe and purchase additional shares, by
submitting binding commit- ments equal to the full
amount of additional capital needed
within five working days of such notification.
(2) Where an existing shareholder of a bank or specialised
deposit-taking institution is unable to subscribe
and purchase additional
Termination of receivership and final reporting to the Bank of
Ghana
136. (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 receiver- ship.
(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
(e)
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).
Miscellaneous receivership provisions
137. 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.
Relationship with other enactments
138. 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.
Voluntary winding-up
139.
(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
Review of decisions of the Bank of Ghana on licensing
140.
(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 nomi- nated 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 ChiefJustice 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.
Review of decision of Bank of Ghana on official administration,
liquidation and receivership by arbitration
141. (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).
Review of decisions through arbitration
142.
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.
Unclaimed balances
143.
(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 with- drawal
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 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.
Prohibition of floating charge
144.
(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
thou- sand 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.
Confidentiality obligations of officials and employees of the
Bank of Ghana
145.
(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 arrange- ment 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.
Secrecy of customer information
146.
(l) Subject to this Act, a person with access to the books,
accounts, records,financial statements or other
documents, electronically or other-
wise,
of a bank or specialized 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 jurisdicion;
(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 ); 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 infor-
mation 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 the 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 trans-
action 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 interna- tional 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.
Agreements for exchange of information
147.
(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 arrange-
ment for coordination and the exchange of
information with the institution responsible for
deposit protection.
isdosure of information relating to banks or specialised deposit-
institutions or financial holding companies
148.
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.
bmission of reports on trend and progress
149.
(1) The Bank of Ghana shall, not later than one hundred and enty
days after the end of the financial year, submit to
the Minister a
,port
on the trend and progress of the business of
deposit-taking in the untry.
(2) The Bank of Ghana
shall include in the report the recomendations that
it considers necessary in the interest of the
deposit- king business in the country.
protection from liability and indemnification
150.
(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 wi the discharge or purported
discharge of an official task within the ope of
employment or engagement of the person under this
Act.
(4) The Bank of hana shall not indemnify a person who has been
convicted of a crime rising out of the activities
that are covered by the legal action.
Collection of civil penaltis
151. An administrativ9
penalty
imposed under this Act by the Bank of Ghana shall be
a debt d,
e from that person to the Bank of Ghana and
shall
I
.
(a)
in the case
I
f a
director, key management personnel, or any other pe
son, be recoverable by personal action against the
director, y management personnel, or that other
person if the debt is not paid within sixty days
after demand;
(b)
in the case a bank, be recoverable by debit to the bank account
of
I at bank with the Bank of Ghana; or
(c)
in the case fa specialised deposit-taking institution or
financial ho ing company, be recoverable by an
action against the ecialised deposit-taking
institution or financial holding ompany if the debt
is not paid within sixty days after th demand.
Prosecution of offences
and
penalties
152.
(1) The Attorn -General may, by executive instrument, authorise
an officer of the ank of Ghana specified in the
instrument to prosecute an offence that . ses under
this Act.
(2) Where a body
I
persons is convicted of an offence under this Act,
(a)
in the case a body corporate other than a partnership, every
direct and officer of that body shall be deemed to
have commi ed the offence; and
(b)
in the case of a partnership, every partner shall be deemed to
have comitted the offence.
(3) A person sha not be convicted under subsection (2), if that
person proves that the 0 nee was committed without
the consent or connivance of that person
• nd that due diligence to prevent the commission of the offence
was ex rcised having regard to the circumstances.
Joinder of offences
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.
General penalty
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 penalty units; or
(c)
in the case of a continuing offence to a further fine of fifty
penalty units for each day that the contravention
continues.
R.egulations
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
provided
for by Regulations.
(2) Without limiting subsection (1), the Minister may make
egulations to provide
(a)
for the payment of fees and charges under this Act;
and
(b)
generally for the effective implementation of this Act.
interpretation
156.
In this Act, unless the context otherwise requires,
"affiliate" of a company means
"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
179);
"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 )
"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 micro finance 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 perfor-
mance 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 eposit-
taking institution, or financial holding companies
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 includs.
a bank or a specialised deposit-taking institution
and its Oates 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 responsi-
bilities 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 signifi-
cant 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 pur- chased 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 corpo- rate 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 period 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.
Repeal and savings
157.
(1) The following enactments are repealed:
(a)
the Banking Act, 2004 (Act 673); and
(b)
the Banking (Amendment) Act, 2007 (Act 738).
(2) Despite the repeal of Act673 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 underAct 673 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.
Validity of existing licence
158.
A bank or specialised deposit-taking institution licensed under
or provided for under the Banking Act, 2004 (Act
673) 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
.
Transitional provisions
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.
Moratorium for transition
160.
(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 .
Moratorium for transition
160.
(1) A bank or a specialised deposit-taking institution that
owns
(a)
a subsidiary company engaged in agricultural, co mmercial or
industrial activity or
(b)
investments, activities or properties in breach of section 19
shall divest itself of such subsidiaries, inves
ents, activities or properties not later than one
year after the coming in
into force
of this Act, or any
other period as the Bank of Ghana may
prescibe.
(2) A bank and specialised deposit-taking institution in e tence
before the coming into force of this Act shall,
upon the coming intoforce of this Act,
have a grace period of six months or any other period
s 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 fmancial 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
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 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)
Date of Gazette
notification:
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