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BANKS AND SPECIALISED DEPOSIT-TAKING
INSTITUTIONS ACT, 2016
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.N
on transferability or assignment oflicence
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
oflicence
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
Oversight of official administrator by the
Bank of Ghana
109.Suspension
of dividends
110.Moratorium
and effect of official administration on
proceedings
111.Suspension
of rights of termination
112.Control
of the bank or specialised deposit-taking
institution by
official administrator
113.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
13 7. Miscellaneous receivership provisions
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
13 7.
Miscellaneous receivership provisions
Relationship
with other enactments
138.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
144.Prohibition
of floating charge
145.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
Act 930
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 N on-Bank Financial
Institutions
Act,
2008 (Act 774).
7
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
responsibilities 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
rnicrofinance 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
represen-tative 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 financingI
projections
for the first five years and the area of
activ·
intended;
(f) documentary evidence of the capital of
the propose d bank or specialised
deposit-taking institution, including
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 specialised 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.
(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 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 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 requirement 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
specialised 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 conditions 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 conditions that th~
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 dissatisfied
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
laundering 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.
(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.
(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 deposittaking
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 determme.
(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;
(I)
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 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.
I
Restrictions on commercial, agricultural or
industrial activities and immovable property
19. (1) Subject to subsection (2),
a bank,
specialised deposit-taking institution or
financial 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 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 usiness 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 institution 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 nnanthorised 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 of an 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 title under
which
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 contravene this section is
liable to pay to the Bank of Ghana an
administrative penalty of one thousand
penalty units.
(4) ln 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 foreign
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 specialised
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 instiutions.
(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 mini-
mum 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 te 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 ofrisk assets and
appropriate adjustments and additions.
I
(6) The Bank of Ghana may prescribe one or
more capital buffer above that required by
the minimum capital adequacy ratio and shall
further prescribe whether failure to
maintain the required buffer w~
constitute failure to meet the minimum
capital requirements for purposes of
sections 91 to 139.
(7) The Bank of Ghana may prescribe a
leverage or gearing ratio and any other form
of capital requirement that the Bank of
Ghana considers necessary or prudent and may
prescribe the methodology for the calculation
of the prescribed ratio or capital
requirement.
(8) A bank, specialised deposit-taking
institution and financial
I
holding company shall comply with the
applicable minimum capital adequacy ratio
and any other requirement prescribed by the
Bank of Ghana under this section.
(9) In determining the percentage of the
minimum capital adequacy ratio,
the Bank of Ghana shall in each case have
regard to
(a)
other financial resources available to the
bank or specialised deposit-taking
institution
in question;
(b)
the nature, scale and risks of the
operations of the bank or specialised
deposit-taking institution; and
I
(c) the amount and nature of net own funds
required,
in the judgment of the Bank of Ghana, to
protect the interests of depositors,
potential depositors and the public.
Additional capital in respect of special
risks
I
30. The Bank of Ghana may require a bank,
specialised deposit- taking institution or
financial holding company to maintain
additional capital that the Bank of Ghana
considers appropriate to address
concentration of risks in the bank,
specialised deposit-taking institution or
financial holding company, or in the
financial system.
Capital adequacy requirements on a
consolidated basis
31.
The Bank of Ghana may prescribe capital
requirements under
section
29 that are to be applied on a consolidated
basis to
(a)
a bank,
specialised deposit-taking institution or a
subsidiary of a bank or specialised
deposit-taking institution,
and
holding company.
Notifying non-compliance with capital
requirements
32. (1) Where a bank, specialised
deposit-taking institution or a financial
holding company fails to comply with the
prescribed minimum capital adequacy ratio,
it shall promptly notify the Bank of Ghana
of the non-compliance and provide the Bank
of Ghana with the particulars of the
non-compliance that the Bank of Ghana may
require.
(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
unimpaired 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 percent 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 after obtaining the prior written
approval of the Bank of Ghana.
(3) Where a bank or specialised
deposit-taking institution declare'
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) .
(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
circum stances.
(5) A bank or specialised deposit-taking
institution which
contravenes a provision of this section is
liable to pay to the Bank 0
'
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 rep-
resented 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 contravenes 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 requirements 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 institution 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
contravention 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.
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
contravention 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.
(l) 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 jurisdiction
(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,
I
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 determine, certified
financial positions, and corporate
affiliations of persons who will hold or
ultimately benefit from significant share
holdings,
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
whereapplicable,
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 information 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 financial 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 of financial
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 deter-
mined 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 maximum 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 ownership 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
administration
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 together 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
accordance 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
detrimental 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-
deposit-taking
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
accordance 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 prescribe.
Review of applications for approval of sale
of businesses, mergers, amalgamations, or
reconstructions
54. (1) For the purpose of reviewing an
application for approval submitted 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,
specialised 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 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
S9.
(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
designation;
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);
(bf
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.
I
(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 specialised 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 constitute 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 soundness 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;
I
(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 financia 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
rat 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 institution, 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 financial 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
institution 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.
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 (1), 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 establishes a subsidiary
company contrary to subsection (I) 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 speciaIised
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-off's
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
financial 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 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
I
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 files,
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, including
(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 confi- dential 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 financial 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 corpo- rate 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 arising 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 compames;
(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 requirements 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.
Verificationofnttonnation
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 subsection (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 10 1.
(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, speciaIised 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 Regulations 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, specialised
deposit-taking institution or financial
holding company to provide for a programme
of remedial action;
(j)
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 accordance 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;
(f)
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 company 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 position 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,
specia1ised 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, specialised
deposit-taking 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 I'D7
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 specia1ised 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 additional 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 commitments 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
shares as provided under subsection (1), the
official administrator shall have the right
to invite another person or persons to
subscribe and purchase the unsubscribed
additional shares.
Recapitalisation by new shareholders
116.
(1) On the basis of the report produced
under section 114 and with the approval of
the Bank of Ghana, the official
administrator may take action to increase
the capital of the bank or specialised
deposit- taking institution through the
issuance of shares to new shareholders in
the
following circumstances:
(a)
in the event that binding commitments are
not submitted to'
an amount equal to the full amount of
additional capital needed by existing
shareholders; or
(b)
if the Bank of Ghana determines that
(i) an expedited resolution of a bank or
specialised deposit-taking institution, or
financial holding company to maintain
financial stability is necessary;
(ii) the existing shareholders are no longer
suitable to maintain a significant capital
position in the bank or specialised
deposit-taking institution;
or
(iii) there has been a failure to comply
with a remedial measure under sections 102
to 106 requiring an increase in the capital
of the bank or specialised deposit-taking
institution.
(2) To carry out recapitalisation by new
shareholders,
the official administrator shall,
(a)
if not already carried out in accordance
with section 115,
determine the extent of losses and prepare
the financial statements of the bank or
specialised deposit-taking institution
covering the amount of losses through the
profits of the bank or specialised deposit
-taking institution, reserves and,
if necessary,
capital of the bank or specialised deposit-
taking institution;
(b)
if necessary to reflect losses,
reduce the value of outstanding shares,
despite any provision in an existing
enactment;
(c)
determine the amount and type of funding
needed to bring the bank or specialised
deposit-taking institution in compliance
with all capital requirements;
and
(d)
cause the bank or specialised deposit-taking
institution to
(i) issue additional shares to the amount
necessary,
and
(ii) carry out the sale of shares by the
bank or specialised deposit-taking
institution and purchase of the shares by
new investors.
Mergers, sales and other restructurings
117. (1) On the basis of the report produced
under section 114 and with the approval of
the Bank of Ghana,
the official administrator may carry out
(a)
a merger of a bank or specialised
deposit-taking institution; or
(b)
a transfer, in whole or in part, of the
assets and liabilities of the bank or
specialised deposit-taking
institution.
(2) A transfer of the assets and liabilities
of the bank or specialised deposit-taking
institution may include a transfer to
(a)
a bridge institution, or
(b)
an asset management vehicle established by
the Government for the purpose of acquiring,
managing, and disposing of problem assets of
a bank or special deposit-taking institution
as part of the resolution of the bank or
special deposit-taking institution.
(3) In accordance with instructions given by
the Bank of Ghana, the official
administrator may approve a restructuring of
the liabilities of the bank or special
deposit-taking institution through
arrangements with the creditors including a
reduction,
modification,
rescheduling and renovation of the claims of
the creditors.
Mandatory restructuring of liabilities
118. (1) On the basis of the report produced
under section 114 and with the approval of
the Bank of Ghana,
the official administrator may restructure
the liabilities of a bank or specialised
deposit-taking institution in accordance
with this section without the approval of
creditors or shareholders concerned.
(2) The Bank of Ghana may approve mandatory
debt restructuring if the Bank of Ghana
determines that the restructuring,
either alone or combined with
recapitalisation, will restore the bank or
specialised deposit- taking institution to
viability.
(3) The Bank of Ghana shall consider the
extent to which the restructuring will
(a)
maximise the value of the bank or
specialised deposit- taking institution;
(b)
minimise losses to creditors and other
stakeholders,
(c)
preserve going-concern value of the bank or
specialised
'deposit-taking
institution for the benefit of creditors and
other stakeholders; and
(d)
avoid or mitigate any severe disruption in
the stability of the financial system.
(4) The restructuring of liabilities shall
follow the order of priorities applicable in
liquidation, except that the Bank of Ghana
may exempt classes of senior unsecured debt
if it determines the classes to be systemic
or of strategic importance that would
justify differential treatment from other
senior unsecured debt.
(5) Mandatory restructuring does not apply
to secured debt.
(6) As part of the restructuring of
liabilities, debt may be
(a)
restructured directly; or
(b)
converted to equity.
Removal of directors and key management
personnel
119. (1) With the approval of the Bank of
Ghana, the official administrator may remove
any or all the directors and key management
personnel and appoint persons to replace
them, despite any provision in an existing
enactment.
(2) A replacement may be approved only by
the Bank of Ghana if it meets the
requirements of subsection (6) of section
60.
Misconduct by significant shareholders,
directors, key management personnel and
others
120.
If the official administrator has sufficient
reason to believe that significant
shareholders, directors, key management
personnel, attorneys,
accountants or other professionals have
engaged or are engaging in illegal
activities or in fraudulent activities the
official administrator shall
(a)
immediately notify the Bank of Ghana, and
(b)
initiate civil action to claim damages and
restitution.
Expenses of the official administration
121.
(1) The official administrator shall receive
a remuneration determined by the Bank of
Ghana.
(2) The bank or specialised deposit-taking
institution involved in an official
administration shall bear the expenses
incurred on account of the official
administration.
Termination
of
official
administration
122.
(1) An official administration shall
terminate at the expiry of the period
specified in the decision appointing the
official administrator or any extension of
the period of the appointment.
(2) An official administration shall be
terminated before the expiry of the period
referred to in subsection (1) if the Bank of
Ghana determines that:
(a)
the official administration is not required
due to the fact that the grounds on which
the appointment of the official
administrator was made no longer justify the
continuance
of the official administrator in office ; or
(b)
the bank or specialised deposit-taking
institution cannot be rehabilitated,
(c)
circumstances require that the licence of
the bank or specialised deposit-taking
institution be revoked under section 16; and
(d)
circumstances require the liquidation of the
bank or specialised deposit-taking
institution commence in accordance with
sections 123 to 139.
(3) Subject to subsection (4), where the
termination of an official administration
does not involve a closure of the bank or
specialised deposit-taking institution, the
official administrator concerned shall carry
out the duties of the bank or of the
directors and key management personnel of
the bank or specialised deposit-taking
institution, until the nomination and
election of new directors and the
appointment of key management personnel.
(4) The official administrator shall take
the actions required under subsection (3)
during the tenure specified under subsection
(3) of section 107.
(5) Pursuant to subsections (3) and (4),
the official administrator shall return the
properties,
offices,
assets,
books and records of the bank or specialised
deposit-taking institution to the newly
constituted board of directors of the bank
or specialised deposit-taking institution.
(6) The decision of the Bank of Ghana to
terminate official administration may be
based on
(a)
a recommendation by the official
administrator, and
(b)
a detailed report prepared by the official
administrator supporting the recommendation.
(7) The official administrator shall within
fourteen days of the termination of the
appointment,
prepare and submit to the Bank of Ghana a
final report and accounting of the official
administration.
(8) The official administrator shall not
acquire significant shares or accept
appointment as a director, key management
personnel or to any other office or position
in the bank or specialised deposit-taking
institution which was the subject of the
administration for a minimum period of two
years after the end of official
administration.
.
Receivership
and Liquidation
Mandatory revocation of licence and
initiation of receivership
123. (1) Where the Bank of Ghana determines
that the bank or specialised deposit-taking
institution is insolvent or is likely to
become
insolvent
within the next sixty days, the Bank of
Ghana shall revoke the licence of that bank
or specialised deposit-taking institution.
(2) The Bank of Ghana shall appoint a
receiver at the effective time of revocation
of the licence under subsection (1).
(3) The receiver appointed under subsection
(2),
shall take possession and control of the
assets and liabilities of the bank or
specialised deposit-taking institution.
(4) For the purpose of this section,
"insolvent"
means the inability of a bank or specialised
deposit-taking institution to pay its
obligations as they fall due or the
circumstance where the value of the
liabilities of a bank or specialised
deposit-taking institution exceeds the value
of its assets.
(5) The value of the assets, liabilities and
regulatory capital of a bank or specialised
deposit-taking institution shall be
determined in accordance with valuation
standards and procedures prescribed by the
Bank of Ghana.
(6) In determining the value of the assets
and liabilities of a bank or specialised
deposit-taking institution for a future
date, the anticipated future income and
expenses of the bank or specialised
deposit-taking institution until that date
shall be taken into account.
(7) The Bank of Ghana shall immediately
notify the institution responsible for
deposit protection of a decision made under
this section.
Qualifications and compensation for receiver
124.
(1) A person is qualified to act as a
receiver if that person
(a)
holds an office in the private sector; or
(b)
is an official of the Bank of Ghana who
meets the qualifi- cations prescribed by the
Bank of Ghana.
(2) A person shall not be appointed a
receiver unless that person satisfies the
qualifications prescribed by the Bank of
Ghana.
(3) The terms of the compensation for a
receiver shall be deter- mined by the Bank
of Ghana.
(4) The following payments shall be made
from the assets of the bank or specialised
deposit-taking
institution involved in the receivership:
(a)
the compensation of a receiver and an expert
engaged by the receiver;
and
(b)
the reimbursement of the expenses incurred
by the receiver and the expert for the
purpose of the receivership.
(5) A person shall make payments to a
receiver on a current basis if in the
judgment of the receiver
there are sufficient
liquid
assets.
(6) Any moneys owing to a receiver at the
end of the term of receivership shall be
paid from the proceeds of the sale of the
bank or specialised deposit-taking
institution in accordance with the priority
described in section 135.
Notice and registration of receivership
125.
(1) The appointment of a receiver by the
Bank of Ghana for a bank or specialised
deposit-taking institution shall be
effective as of the date of issuance of the
appointment letter, unless otherwise
provided for in the letter.
(2) The receiver shall on receipt of the
appointment letter display
in each place of business of the bank or
specialised deposit-taking institution a
notice to announce the revocation of the
licence and the appointment by the Bank of
Ghana.
(3) The notice shall specify the effective
date and time of possession by the receiver
and indicate
(a)
that authorisation of the person permitted
to engage in financial transactions of the
bank or specialised deposit- taking
institution have been withdrawn;
(b)
that persons who previously had
authorisation to give instructions on behalf
of the bank or specialised deposit- taking
institution with respect to payment or
transfer of
the
(i) assets of the bank or specialised
deposit-taking institution; and
(ii) assets managed by the bank or
specialised deposit- taking institution
are no longer authorised to give
instructions;
and
(c)
the licence of the bank or specialised
deposit-taking institution has been revoked.
(4) The Bank of Ghana shall provide
immediate notice regarding revocation of the
licence to the chairperson of the board of
directors of the bank or specialised
deposit-taking institution.
(5) The receiver shall
(a)
publish a notice specifying the actions
taken in at least two daily newspapers of
national circulation;
(b)
arrange for the publication of the notice
each week for four consecutive weeks;
(c)
inform the competent authorities,
and
(d)
transmit copies of the actions under
paragraphs (a) to (c) to the
Bank of Ghana within two days of taking the
action.
(6) For the purpose of this section,
"competent authority"
means the Police,
Ministry responsible for Finance
and the Ministry responsible for Justice.
Oversight of Bank of Ghana over receiver
126.
(1) The receiver shall act in accordance
with the directives, instructions,
and guidelines given by the Bank of Ghana in
the course of the liquidation.
(2) The receiver shall be accountable only
to the Bank of Ghana for the performance of
duties and the exercise of powers as a
receiver.
(3) The receiver shall at the end of each
month
(a)
report to the Bank of Ghana on the progress
of the receivership in the form that the
Bank of Ghana may prescribe;
and
(b)
provide any other information on request of
the Bank of Ghana.
General powers of receiver
127.
(1) On the appointment of the receiver, the
receiver shall be the sole legal
representative of the bank or specialised
deposit-taking institution,
and shall succeed the rights and powers of
the shareholders,
the directors and the key management
personnel of the bank or specialised
deposit-taking institution.
(2) Despite subsection (1), the receiver may
instruct the shareholders,
directors and key management personnel to
exercise specific functions for
the bank or specialised deposit-taking
institution.
(3) The rights and powers of the receiver
include
(a)
taking possession of the books,
records, and assets of the bank or
specialised deposit-taking institution;
(b)
managing,
operating and representing the bank or
specialised deposit-taking institution;
(c)
marshalling assets and claims;
(d)
transferring or disposing of assets;
(e)
continuing or interrupting any operation of
the bank or specialised deposit-taking
institution;
(f)
borrowing money on a secured or unsecured
basis with the approval of the Bank of
Ghana;
(g)
suspending or limiting the payment of debts
subject to the approval of the Bank of
Ghana;
(h)
hiring specialists, experts or professional
consultants;
(i)
administering the account of the bank or
specialised deposit-taking institution;
(j)
the collection of the debts due to the bank
or specialised deposit-taking institution
and the recovery of goods owed by third
parties;
(k)
initiating or defending the bank or
specialised deposit- taking institution in
any legal proceeding, and
(l)
executing any relevant instrument in the
name of the bank or specialised
deposit-taking institution.
(4) In exercising the rights and powers
under subsection (3), the receiver shall
(a)
maximise the proceeds from the sale of
assets; and
(b)
take any action necessary for the efficient
liquidation of the bank or specialised
deposit-taking institution.
(5) A receiver shall not take any deposits.
(6) Despite the revocation of the licence of
a bank or specialised deposit-taking
institution, a receiver may extend credit
only to an existing customer in accordance
with the terms of an agreement in force at
the time of the appointment of the receiver
and with the express approval of the Bank of
Ghana.
(7) Thirty days from the date of
appointment, the receiver may make payments
to depositors or to other creditors of such
amounts that in the opinion of the receiver
may appropriately be used for that purpose
subject to section 135.
(8) In making payments under subsection (7),
the receiver shall treat creditors who are
similarly situated in the same manner.
(9) The receiver may sell the assets of the
bank or specialised
deposit-taking institution or arrange for
the assumption of liabilities of the bank or
specialised deposit-taking institution on
terms that the receiver considers fair.
(10) The receiver may, upon the prior
written approval of the Bank of Ghana and
according to its guidelines, pursue the
following activities:
(a)
dispose of the assets and liabilities of a
bank or specialised deposit-taking
institution through a purchase and
assumption transaction;
(b)
organise a restructuring of the assets and
liabilities of a bank or specialised deposit-taking
institution;
or
(c)
continue viable or necessary operations
through a bridge institution.
(11) For the purpose of subsection (10), a
"bridge institution" is an institution
established by the Government or the Bank of
Ghana for a temporary period for the purpose
of resolving a bank or specialised
deposit-taking institution in distress.
(12) The Bank of Ghana shall approve or
decline a merger
of a bank or specialised deposit-taking
institution with another bank or specialised
deposit-taking institution, or the sale of
substantially all the assets of the bank or
specialised deposit-taking institution to
anyone bank or specialised deposit-taking
institution,
based upon the criteria under section 52.
(13) Despite a provision in this Act, the
receiver shall not make any payments
whatsoever to any insured depositor defined
under the Ghana Deposit Protection Act,
2016 (Act
931)
unless the institution responsible fo
deposit protection has completed payouts and
any re-claims to insured depositors.
Effects of receivership
128. When a receiver has taken possession of
a bank or specialised deposit-taking
institution,
(a)
any term on the expiration of which a claim
or right of the bank or specialised
deposit-taking institution would expire or
be extinguished,
shall be suspended;
(b)
the calculation of interests and penalties
against the obligations of the bank or
specialised deposit-taking institution shall
be suspended and no other charge or
liability shall
accrue on the obligations of the bank or
specialised deposit- taking institution;
(c)
any legal proceeding against the bank or
specialised deposit-
taking institution shall stay and the
exercise of any right on the assets of the
bank or specialised deposit-taking
institution shall be suspended; and
(d)
the right of a third party shall not be
exerted over assets during liquidation of
the bank or specialised deposit- taking
institution and a creditor shall not attach,
sell or take
possession of any assets of the bank or
specialised deposit- taking institution as a
means of enforcing a claim or initiating or
continuing any legal proceeding to recover
the debt or perfect security interest in the
assets of the bank or specialised
deposit-taking institution.
Control
of the bank or specialised deposit-taking
institution by receiver
129.
(1) The receiver shall have unrestricted
access to and control over the offices,
books of account and other records and other
assets of the bank or specialised
deposit-taking institution.
(2) On the request of the receiver, a law
enforcement officer shall
(a)
assist the receiver to gain access to the
premises of the bank or specialised
deposit-taking institution; or
(b)
assist the receiver to gain control over the
records of the bank or specialised
deposit-taking institution.
(3) Subsections (1) and (2) apply to the
subsidiaries of a bank or specialised
deposit-taking institution.
(4) The receiver shall secure the property,
offices, books, records, and assets of the
bank or specialised deposit-taking
institution to prevent dissipation by theft
or other improper action.
(5) The receiver shall in exercising its
power under subsection (2) take the
following actions:
(a)
change the locks and limit access to the new
keys on external and internal entrances to
the bank or specialised deposit- taking
institution which contain financial assets
or information or equipment which could
enable a person to gain
unlawful access;
(b)
change or establish access codes to the bank
or specialised deposit-taking institution
and grant access only to a limited number of
computers and employees;
(c)
issue new photo identification passes for
entry by authorised
employees to the premises of the bank or
specialised
deposit-taking institution and control the
access of other
persons to the premises of the bank or
specialised deposit-
taking institution;
(d)
cancel authorisations permitting persons to
engage the financial responsibility of the
bank or specialised deposit- taking
institution and issue new authorisations, as
appropriate and notify third parties
concerned;
(e)
inform
(i) correspondent banks or specialised
deposit-taking institutions,
(ii) registrars and transfer agents of
securities, and
(iii) external asset managers of the bank or
specialised deposit-taking institution
that persons who previously had
authorisation to give instructions on behalf
of the bank or specialised deposit-taking
institution involved with respect to dealing
in the assets of the bank or assets held in
trust by the bank or the specialised
deposit-taking institutions are no longer
authorised to give instructions and that
only the receiver and persons authorised by
the receiver have authority to give
instructions;
(f)
suspend the payment of capital distributions
in general and payment to key management
personnel, and significant shareholders,
except the compensation that may be paid to
directors or key management personnel; and
(g)
any action necessary for the efficient
exercise of the powers of the receiver.
(6} A person who willfully interferes with
the access of a receiver to or the control
of a receiver over the offices, assets,
books of account and other records of a bank
or specialised deposit-taking institution
for which that person has been appointed,
commits an offence and is liable on summary
conviction to a fine of not less than one
hundred penalty units and not more than five
hundred penalty units for each day that the
contravention continues, or to a term of
imprisonment of not less than one year and
not more than five years or to both.
(7) The suspension of payment under
paragraph (f) of subsection (3) does
not affect the base compensation payable to
directors or key management personnel for
services rendered in the capacity as a
director or key management personnel of the
bank or specialised deposit-taking
institution.
(8) The receiver shall furnish the
institution responsible for de- posit
protection with information
and reports in the form and manner that may
be determined by that institution.
Inventory of
assets
and new financial position
130.
(1) A receiver shall establish a new
financial position for the bank or
specialised deposit-taking
institution,
based on a determination
of liquidation values of the assets of the
bank or specialised deposit-taking
institution.
(2) A liability shall be deemed due and
payable and interest shall cease to accrue
as from the date of the appointment of the
receiver.
(3) An unmatured liability shall be
discounted to its present value at the rate
of interest determined by the Bank of Ghana.
(4) The receiver shall within one month of
taking possession of a bank or specialised
deposit-taking institution, take an
inventory of the assets and property of that
bank or specialised deposit-taking
institution and transmit a copy of the
inventory report to the Bank of Ghana.
(5) The Bank of Ghana shall publish the
inventory report in two daily newspapaers of
national circulation and on the website of
the Bank of Ghana.
Repudiation of contracts
131.
(1) The receiver may within thirty days of
the date of appointment repudiate any non
performed or partially performed contract
for the reason that the fulfillment of the
contract is burdensome for the bank or
specialised deposit-taking institution and
the repudiation would promote the orderly
administration of the affairs of the bank or
specialised deposit-taking
institution and protect the interests of
depositors.
(2) Any liability arising from the
repudiation under subsection (1), shall be
determined as of the date of repudiation and
shall be limited to actual direct damages
incurred and exclude any damage for lost
profits or opportunity or non-monetary
damages.
(3) In case of the repudiation of a
contract for the lease of immovable and
movable property, the receiver shall
give thirty day's notice.
Setting aside of pre-receivership
transactions
132. (1) The receiver may set aside the
following transactions
affecting the assets of the bank or
specialised deposit-taking institution and
recover the assets from the transferee or
other beneficiary of the transaction:
(a)
gratuitous transfers to, or to persons
related to, affiliates, insiders or key
management personnel of the bank or
specialised deposit-taking institution
made within
five years before the effective
date of the receivership;
(b)
transactions with affiliates,
insiders or key management personnel of the
bank or specialised deposit-taking
institution conducted within five years
before the effective date of the
receivership,
if detrimental
to the interest of depositors and other
creditors;
(c)
gratuitous transfers to third parties made
within three years before the effective date
of the receivership;
(d)
transactions
in
which the consideration given
by
the
bank
or specialised deposit-taking institution
considerably exceeded the received
consideration,
made within three years before the effective
date of the receivership;
(e)
a transaction
based on a forged or fraudulent document
that the bank or specialised deposit-taking
institution
has executed to the detriment of creditors;
(f)
any act done with the intention of all the
parties involved
to withhold assets from the creditors of the
bank or
specialised deposit-taking institution,
or otherwise impair
their
rights,
within five years before the effective
date
of
the receivership;
(g)
transfers of property of the bank or
specialised deposit- taking institution to,
or for the benefit of,
a creditor
on account of a debt incurred
within one year
before the
effective
date of the receivership which has the
effect of increasing
the amount that the creditor would receive
in
a
liquidation
of the bank or specialised deposit-taking institution,
and
(h)
any attachment or security interest other
than an attachment or security interest that
existed six months before the effective date
of the receivership.
(2) Subsection (1) does not apply to the
payment of deposits of an amount equal to or
less than
(a)
one thousand four hundred and fifty Ghana
Cedis in the case of a specialised
deposit-taking institution;
and
(b)
six thousand two hundred and fifty Ghana
Cedis in the case of banks
for each depositor or for the amounts that
may be determined in accordance with the
Ghana Deposit Protection Act,
2016 (Act ).
(3) The receiver shall take action to set
aside a transfer under this section within
one year after the effective date of the
receivership.
(4) Despite subsections (1), (2) and (3),
the receiver shall not set aside a payment
or transfer by the bank or specialised
deposit-taking institution
(a)
if the payment or transfer was made in the
ordinary course of business,
(b)
if the payment or transfer was part of a
contemporaneous exchange for reasonably
equivalent value, or
(c)
to the extent that following the transfer
the recipient extended new unsecured credit
to the bank or specialised deposit-taking
institution which had not been satisfied by
the bank or specialised deposit-taking
institution as of the effective date of the
receivership.
(5) Despite subsections (1) to (4),
the receiver shall not set aside a payment
or transfer by the bank or specialised
deposit-taking institution made pursuant to
any power of an official administrator under
sections 107 to 122.
(6) The receiver may recover property or the
value of property transferred by the bank or
specialised deposit -taking institution from
a transferee of an initial transferee only
if the second transferee did not give fair
value for the property and knew or
reasonably should have known that the
initial transfer could be set aside under
this Act.
(7) The receiver may order the notice of an
action to set aside a transfer to be
recorded in the public records for real
estate ownership.
(8) Pursuant to the record of a notice under
subsection (7) the right of a person to the
property in question or a title to interest
in the property
is subject to the rights of a bank or
specialised deposit-taking institution to
recover the property.
Determination of claims
133.
(1)The Bank of Ghana may prescribe
(a)
the procedure for determining the validity
and priority of a claim;
(b)
the liquidation of the asset of a bank or a
specialised deposit- taking institution; and
(c)
the return of the property of a customer of
a bank or a specialised deposit-taking
institution.
(2) Without limiting the powers of the
Bank
of Ghana under subsection (1),
the sale of the asset ofa bank or
specialised deposit-taking institution,
shall be effected in a transparent and
commercially reasonable manner.
(3) Subject to subsection (4), a bank or
specialised deposit-taking institution shall
not allow a set off in respect of claims
acquired
towards the bank or specialised deposit-
taking institution within three months
before the appointment of a receiver or
after the appointment of a receiver.
(4) A claim against a bank or specialised
deposit-taking institution arising from a
deposit shall be set-off against any sum due
from a depositor to the bank or specialised
deposit- taking institution as of the date
on which the licence is revoked and the
receiver is appointed in the following
manner:
(a)
automatically,
if the sum is matured or past due; or
(b)
at the option of the depositor, if the sum
is not matured or past due.
Claims relating to eligible financial
contracts
134.
(1) In determining the rights and
obligations between a bank or specialised
deposit-taking institution and its
contractual counterpart,
effect shall be given to the termination
provisions of eligible financial contracts
between the bank or specialised deposit-
taking institution and the contractual
counterpart of the bank or specialised
deposit-taking
institution, except during the period of a
temporary stay on the exercise of a right
that the Bank of Ghana may prescribe.
(2) The temporary stay of termination
provisions shall be subject to the
safeguards that the Bank of Ghana shall
prescribe in order to facilitate the
liquidation of the bank or the specialised
deposit-taking institution and
simultaneously minimise any disruption to
the markets for eligible financial
contracts.
(3) The net termination value determined in
accordance with an eligible financial
contract between a bank or specialised
deposit-
taking institution and its contractual
counterpart, shall be a claim of the bank or
the specialised deposit-taking institution
on the counterpart or shall be admitted
after the net termination value is validated
as a claim of the counterpart on the bank or
the specialised deposit- taking institution.
(4) In this section, "net termination value"
means the net amount obtained after setting
off the mutual obligations between the
parties to an eligible financial contract in
accordance with the provisions of that
contract.
(5) For the purposes of this section,
the Bank of Ghana shall
prescribe the types of contracts that shall
qualify as "eligible financial contracts"
and that may include a master agreement
covering more than one type of contract.
Priorities in payment of claims
135.
(1) In pursuance of the liquidation of the
assets of a bank or a specialised
deposit-taking institution,
(a)
allowed secured claims shall be paid
(i) to the extent of the realisation of the
security; or
(ii) by delivering to the secured creditor,
the security held by the bank or the
specialised deposit-taking institution; and
(b)
other allowed claims shall be paid in
relation to all other debts, in the
following order:
(i) necessary and reasonable expenses
incurred by the receiver and the Bank of
Ghana,
including professional fees,
under sections 123 to 139;
(ii) payments made by the institution
responsible for deposit protection in
respect of insured deposits in compliance
with the Ghana Deposit Protection Act, 2016
(Act 931)
(iii) credits extended to the bank or
specialised deposit- taking institution by
the Bank of Ghana until the appointment of
the receiver;
(iv) statutory amounts owed to the
Government or to a municipality,
except as determined by the Government;
(v) wages or salaries earned by an employee
not later than one hundred and eighty days
before the appointment of the receiver, as
may be specified by the Bank of Ghana except
for wages and salaries earned by a director
or a key management personnel;
(vi) credits extended to the bank or
specialised deposit- taking institution
after the appointment of the receiver;
(vii) deposits not covered under
subparagraph (ii);
(viii) compensation of employees not covered
under sub-
paragraph (v);
(ix) unsecured credits extended to the bank
or specialised deposit-taking institution
before the appointment of the receiver; and
(x) subordinated debt.
(2) Where the amount available for payment
of any class of claim under subsection (1)
is insufficient to provide payment in full,
the claim of that class shall be reduced in
equal proportions.
(3) After payment of all claims filed, the
remaining allowable claims that were not
filed within the time specified by the
receiver for filing,
shall be paid.
(4) Where any proceeds remain after all
claims of depositors and other creditors
have been paid, the proceeds shall be
distributed among the shareholders of the
bank or the specialised deposit-taking
institution involved in accordance with
their rights.
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 receivership.
(2) Where the Bank of Ghana approves the
report under subsection (1),
(a)
the receivership of the Bank of Ghana
terminates; and
(b)
the Bank of Ghana and the receiver are
relieved of any further responsibility in
connection with the receivership of the bank
or specialised deposit-taking institution
involved.
(3) A receiver may abandon the sale of an
asset of a bank or a specialised
deposit-taking institution or donate the
asset to a charitable institution that
promotes public health or education,
where
(a)
the asset is of an immaterial value;
(b)
the receiver is unable to sell the asset; or
(c)
the cost of sale of the asset would exceed
the amount expected to be received.
(4) The creditor of a bank or a specialised
deposit-taking institution does not have a
claim against an asset under subsection (3).
Miscellaneous receivership provisions
13 7. 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 nominated by the Chief Justice;
(b)
one person with knowledge in banking and
finance and with not less than ten years
experience in banking and finance nominated
by the Chartered Institute of Bankers;
and
(c)
one member of the Institute of Chartered
Accountants,
Ghana who has been in practice for not less
than ten years,
nominated by the Institute of Chartered
Accountants, Ghana.
(4) The Chief Justice shall appoint members
of the Adjudicative Panel.
(5) The Adjudicative Panel shall adopt its
own rules of procedure.
(6) The Adjudicative Panel shall
communicate its decision to the applicant
within thirty days of receipt of the appeal
made to it in writing under subsection (2).
(7) A person dissatisfied with the decision
of the Adjudicative Panel may appeal to the
High Court within thirty days upon receipt
of the decision.
(8) The expenses of the Adjudicative Panel
including allowances of members of the
Adjudicative Panel shall be borne by the
Bank of Ghana.
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
withdrawal shall not be made on the account
except with the permission of two authorised
officers of the bank or specialised
deposit-taking institution involved.
(2) An account referred to in subsection (1)
shall be transferred to a separate register
of dormant accounts in the books of the bank
or specialised deposit-taking
institution
and a notice in writing
of that
action shall be given to the depositor at
the last known address of the depositor.
(3) Where an account which is transferable
under subsection (2) is subject to a service
charge, or is an interest bearing account,
the charge may continue to be levied 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 trans-
ferred 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 arrangement entered into
by the Bank of Ghana pursuant to section
147;
(b)
the disclosure of information pursuant to an
order made by a judge in chambers under any
relevant enactment related to mutual
assistance in criminal and related matters
to a foreign State;
(c)
the disclosure of information to the
Financial Intelligence Centre established
under the Anti-Money Laundering Act, 2008
(Act 749);
(d)
the disclosure of information to members of
the Financial Sector Regulators Forum; or
(e)
the exchange of information between the Bank
of Ghana and the institution responsible for
deposit protection.
Secrecy of customer information
146.
(1) 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 specialised deposit-taking
institution shall,
(a)
in the case of a director or key management
personnel, take an oath of confidentiality
in the form set out in Part I of the Second
Schedule; or
(b)
in any other case, make a declaration of
confidentiality before the chief executive
or deputy chief executive of
the
bank or specialised deposit-taking
institution in the form
before the person begins to perform any
function under the banking laws.
(2) Except for the purpose of the
performance of functions or the exercise of
a power under the banking laws or as
directed in writing by the Bank of Ghana, a
person referred to in subsection (1) shall
not, during or after a relationship with the
bank or specialised deposit-taking
institution, disclose directly or indirectly
to any person any information related to the
affairs of any of its customers including
deposits, borrowings or transactions or
other personal, financial or business
affairs without the prior written consent of
the customer or the personal representative
of the customer.
(3) The duty of confidentiality imposed
under this section shall not apply to the
provision of customer information
(a)
to the Bank of Ghana for purposes of
carrying out duties and exercising powers
under this Act;
(b)
to the Ghana Revenue Authority
(i) upon the request of the Ghana Revenue
Authority acting in accordance with
paragraphs 19 and 20 of the Seventh Schedule
of the Income Tax Act, 2015 (Act 896);
or
(ii) in accordance with Regulations made
under the Income Tax Act, 2015 (Act 896) for
the automatic exchange of financial
information for tax purposes with the
competent authority of another jurisdiction;
(c)
to the Financial Intelligence Centre
established under the Anti-Money Laundering
Act,
2008 (Act 749);
(d)
to the Collateral Registry set-up under the
Borrowers and Lenders Act, 2008 (Act 773).
(e)
in accordance with the provisions of the
Credit Reporting Act, 2007 (Act 726);
(f)
in accordance with the provisions of the
Ghana Deposit Protection Act,
2016 (Act 931);
or
(g) to the Securities and Exchange
Commission.
(4) The duty of confidentiality imposed
under this section shall not apply where
(a)
a customer issued with a credit card or
charge card by a bank or specialised
deposit-taking institution,
has had the
card suspended or cancelled by that bank or
specialised deposit-taking institution by
reason of default in payment,
and the bank or specialised deposit-taking
institution discloses information related to
the name and identity of the customer, the
amount of indebtedness and the date of
suspension or cancellation of the credit
card or charge card to another bank or
specialised deposit-taking institution that
is issuing credit cards or charge cards in
the country;
(b)
the customer is declared bankrupt or
insolvent in Ghana or,
in the case of a company, is being wound up;
(c)
the customer has died, testate or intestate,
and the information is required by the
appointed personal representative of the
deceased or the testamentary executor solely
in connection with the succession to the
estate;
(d)
the express consent of the customer has been
obtained;
(e)
civil proceedings have been instituted
involving the bank or specialised
deposit-taking institution and the customer
or the account of the customer;
(f)
the information is required by an officer in
the employment of the same bank or
specialised deposit-taking institution in
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
international treaty, convention or
agreement; and
(b)
the obligations of the Bank of Ghana under
any agreement or arrangement or under any
existing or future memorandum of
understanding for cooperation and exchange
of information between the Bank of Ghana and
any other foreign regulatory agency
performing functions similar to those of the
Bank of Ghana.
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 arrangement for coordination
and the exchange of information with the
institution responsible for deposit
protection.
Disclosure of information relating to banks
or specialised deposit-
taking 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.
Submission of reports on trend and progress
149.
(1) The Bank of Ghana shall,
not later than one hundred and twenty days
after the end of the financial year, submit
to the Minister a report on the trend and
progress of the business of deposit-taking
in the country.
(2) The Bank of Ghana shall include in the
report the recommendations that it considers
necessary in the interest of the deposit-
taking business in the country.
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 with the discharge or
purported discharge of an official task
within the scope of employment or engagement
of the person under this Act.
(4) The Bank of Ghana shall not indemnify a
person who has been convicted of a crime
arising out of the activities that are
covered by the legal action.
Collection of civil penalties
151.
An administrative penalty imposed under this
Act by the Bank of Ghana shall be a debt due
from that person to the Bank of Ghana and
shall
(a)
in the case of a director,
key management personnel,
or any other person, be recoverable by
personal action against the director, key
management personnel, or that other person
if the debt is not paid within sixty days
after demand;
(b)
in the case of a bank, be recoverable by
debit to the bank account of that bank with
the Bank of Ghana; or
(c)
in the case of a specialised deposit-taking
institution or financial holding company, be
recoverable by an action against the
specialised deposit-taking institution or
finan-
cial holding company if the debt is not paid
within sixty days after the demand.
Prosecution of offences and penalties
152.
(1) The Attorney-General may, by executive
instrument, authorise an officer of the Bank
of Ghana specified in the instrument to
prosecute an offence that arises under this
Act.
(2) Where a body of persons is convicted of
an offence under this Act,
(a)
in the case of a body corporate other than a
partnership,
every director and officer of that body
shall be deemed to have committed the
offence; and
(b)
in the case of a partnership, every partner
shall be deemed to have committed the
offence.
(3) A person shall not be convicted under
subsection (2), if that person proves that
the offence was committed without the
consent or connivance of that person and
that due diligence to prevent the commission
of the offence was exercised having regard
to the circumstances.
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.
Regulations
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 Regulations 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
(a)
a body corporate of which the company is a
subsidiary,
(b)
a subsidiary of the company, or
(c)
a body corporate that is under a common
control with the company;
"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
931)
"deposit-taking business" means the business
of
(a)
taking money on deposit and making loans or
other advances of money; and
(b)
financial activities prescribed by the Bank
of Ghana for purposes of this definition;
"deposit-taking 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 performance related earnings;
"employee" means an individual employed by a
bank or specialised deposit-taking
institution other than a director or key
management personnel;
"enhanced reporting" means frequent and
detailed reporting;
"examination" includes the carrying out of
on-site, off-site, credit reporting and any
other examination as may be determined by
the Bank of Ghana under the Anti-Money
Laundering Act,
2008 (Act 749) or any other relevant
enactment;
"financial
exposure" in relation to a bank, specialised
deposit- taking institution,
or financial holding company with respect to
a person is the aggregate of
(a)
the loans, advances, placements,
and credit facilities including off-balance
sheet obligations given to that person,
and
(b)
the value of the holdings by that bank,
specialised deposit-taking institution, or
financial holding company of shares and
debentures and other debt securities issued
by that person;
"financial group" means a corporate group
that includes a bank or a specialised
deposit-taking institution and its
affiliates or associates that the Bank of
Ghana determines to be taken into account
for purposes of this Act;
"financial holding company" means a company
that controls a bank or a specialised
deposit-taking institution which is subject
to registration requirements under this Act;
"finance house" means a specialised
deposit-taking institution engaged primarily
in providing consumer credit and business
finance;
"financial
institution"
means a bank or a specialised deposit-
taking institution;
"Financial
Sector Regulators Forum"
means a platform for exchange of information
between regulators of the financial system
in the country;
"fit and proper person" means a person who
is suitable to hold the particular position
which that person holds or is to hold as
regards
(a)
the probity,
competence and soundness of judgment of the
person for purposes of fulfilling the
responsibilities of that person;
(b)
the diligence with which that person fulfils
or is likely to fulfill those
responsibilities;
(c)
whether the interest of depositors or
potential depositors of the entity are
threatened, or likely to be, in any way threatened
by the person holding that position;
and
(d)
that the
integrity
of the person is established and the
qualifications and experience of the person
are appropriate for the position in the
light of the business plan and activities
of the entity which the person serves,
or is likely to serve,
taking
into
account the size,
nature and complexity of the institution;
"foreign
bank"
means a foreign company that is authorised
to engage in a deposit-taking business in
the country where its head office is located;
"foreign
company"
means a company incorporated under the laws
of a country other than Ghana;
"foreign
exchange business"
means the business of buying,
selling,
borrowing,
lending,
receiving or paying
foreign
exchange;
"holding company"
means a company that controls another
company or body corporate,
whether or not the holding company is a
non-operating or operating company;
"insider"
with respect to a bank or a specialised
deposit-taking institution means a director,
an executive
director, key management personnel and a
significant shareholder other than a
financial holding company;
"key
management personnel"
includes the chief executive,
deputy chief executive,
chief operating
officer,
chief finance officer,
board secretary,
treasurer,
chief internal auditor,
the chief risk officer, the head of
compliance,
the anti-money laundering reporting
officer,
the head of
internal
control
functions,
the chief
legal officer,
the manager of a significant
business
unit
of the
bank,
a specialised
deposit-taking
institution,
or a financial holding company or any person
with similar responsibilities;
"large exposure" means financial exposure to
a single borrower or group of connected
borrowers that in the aggregate exceeds ten
percent of the net own funds of the bank, a
specialised deposit-taking institution, or
financial holding company;
"law enforcement agency" means the Police,
Bureau of National Investigations and
officers of the Economic and Organised Crime
Office;
"management letter" means a formal letter
from the auditor addressed to the financial
institution on the weaknesses identified in
the operations of a financial institution
during
the audit;
"micro and small business financing" means
the financing of households and small
business enterprises;
"minimum paid-up capital" includes
(a)
initial funds required to start-up a bank or
specialised deposit-taking institution, and
(b)
the operational start-up costs as may be
prescribed by the Bank of Ghana but excludes
expenses incurred in employing capital;
"Minister" means the Minister responsible
for Finance;
"net open position" means the sum of the
foreign currency exposure of a bank
expressed as a percentage of that bank's net
own funds taking into consideration the
following:
(a)
the net position of its total foreign
currency assets and liabilities,
(b)
the position of spot and forward foreign
exchange transactions on the reporting date,
and
(c)
the sum of all off-balance sheet obligations
maturing within two working days of the
reporting date or any other period as may be
prescribed by the Bank of Ghana;
"net own funds" includes the sum total of
share capital that has been paid-up,
free reserves but excludes revaluation
reserves, on property, plant, and equipment,
other non- distributable reserves unless
with the approval of the Bank of Ghana,
other than the Reserve Fund established
under section 34, subject to netting out
accumulated losses, goodwill and unwritten
off capitalised expenditure including
pre-operating expenses and deferred tax;
"non interest banking" means a banking
service that does not attract interest;
"off balance sheet transaction" includes
contingent assets contingent liabilities in
the form of letters of credit, guarantees,
bids, bonds and indemnities;
"ordinarily resident" means a situation
where a person has lived ill Ghana for at
least twelve months;
"paid-up capital" includes minimum capital,
additional fully paid-up shares, and the
capitalisation of income surplus;
"person" includes a body corporate, whether
corporation, aggregate or corporate sole and
unincorporated body of persons as well as an
individual;
"prescribed" means prescribed by Regulations
or Rules or directives issued by the Bank of
Ghana under this Act;
"public interest" includes a right or
advantage which enures or is intended to
enure to the general benefit of the people
of this country;
"purchase and assumption" means an agreement
in which a part or the whole of the assets
of the failed bank are purchased and all or
some of the liabilities are assumed by an
acquiring bank;
"relevant entities" include a bank, a
specialised deposit-taking institution, and
financial holding company;
"Regulations" means the Regulations made
under this Act;
"related interest" in relation to an insider
means
(a)
a firm or company in which an insider is
interested, directly or indirectly as a
director or controlling shareholder,
partner,
proprietor,
employee or guarantor; and
(b)
a holding company, subsidiary, or affiliate
of that company in which an insider is
interested, directly
or indirectly,
as director,
key management personnel, controlling
shareholder, partner, proprietor,
employee or guarantor;
"related
persons"
in relation to an insider means a spouse,
son,
daughter,
step son, step daughter, brother, sister,
father,
mother,
cousin,
nephew,
niece,
aunt,
uncle,
step sister
and step brother of an insider;
"rural or community bank"
means a specialised
deposit-taking
institution engaged primarily
in
deposit-taking
business
within a defined catchment area;
"savings and
loans
company"
means a specialised deposit-
taking institution engaged primarily in the
deposit-taking business from households
and small business enterprises and the
provision of credit to the corporate and
non-corporate sector, and micro and small
business financing;
"shell
company"
means a company that has no physical
presence in the country in which it is
incorporated and licensed,
and that is unaffiliated with a regulated
financial
service
group that is subject to effective
consolidated
supervision;
"significant
shareholder"
means a shareholder who has a direct or
indirect holding which represents five
percent or more of the capital or of the
voting rights;
"significant
shareholding" means a direct or indirect
holding which represents five percent or
more of the capital or of the voting rights;
"specialised
deposit-taking
institution"
means
a body 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
(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 Act 673 and Act
738, the Regulations, orders, directives,
notifications, instructions, exemptions,
approvals, decisions, rules and any other
executive or administrative act lawfully
made, given or done under Act 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.
FIRST SCHEDULE
Part I
(Section
145 (1) (a))
Oath of Confidentiality
IN THE HIGH COURT
I,
.............................,
having been
appointed do hereby swear/solemnly
affirm that I shall maintain during or after
my relationship with the Bank of Ghana the
confidentiality of any matter related to the
banking laws which comes to my knowledge and
shall not,
on any
account and at any time, disclose directly
or indirectly to any person,
any
matter or information related to the affairs
of the Bank of Ghana or of any other bank,
specialised deposit-taking institution or
financial holding company or the affairs of
any of their customers, otherwise than for
the purpose of the performance of my
functions or the exercise of my powers under
the banking laws or when meeting the
requirements of an agreement or
understanding reached by the Bank of Ghana
with any other relevant supervisory body or
when lawfully required to do so by a Judge
in chambers or any court of law or under any
enactment.
Signature of
declarant.
.
Taken before me
.
The Registrar of the High Court on
.................................................
(date)
Part II
(Section
145 (1) (b))
Declaration of Confidentiality
1
.
having
been appointed
do hereby declare that I shall maintain
during or
after
my relationship
with
the
confidentiality of any matter related to the
banking laws which come to my
knowledge
and shall
not,
on
any
account
and
at any
time,
disclose
directly
or
indirectly to any person, any matter or
information related to the affairs of
...................
.................................
otherwise than for the purpose of the
performance of my functions or the exercise
of my powers under the banking laws or when
lawfully required to do so by a Judge in
chambers or any court of law or under any
enactment.
Signature of declarant
........................................................
.
Made before me
..................................................................
.
Name
...................................................................................
.
The Chief Executive
............................................................
(date)
SECOND SCHEDULE
Part I
(Section
146 (1) (a))
Oath of Confidentiality
IN THE IDGH COURT
I.
.............having
been appointed
..................................................................................
do hereby swear/solemnly
affirm
that
I
shall
maintain
during or
after
my relationship
with..................................
...........................................
the confidentiality of any matter related to
the
banking laws which come to my knowledge and
shall not,
on any account and
at anytime,
disclose directly or indirectly to any
person,
any matter or information related to the
affairs of
otherwise than for the purpose of the
performance of my function or the
exercise
of
my
powers
under the banking laws or when lawfully
required
to
do so by a Judge
in chambers or any court of law or under any
enactment.
Signature
of declarant .............................
.
Taken before
me .......................................
.
The Registrar of the High Court on
.............................. (date)
Part ll
(Section
146 (1) (b))
DecIaration 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 on
.............................................................
(date)
Date
of Gazette
notification:
GPCL,
ASSEMBLY PRESS,
ACCRA.
GPCLlAOOOIl,500/09/2016
Website:
www.ghpublishingcompany.com
E-mail:
info@ghpublishingcompany.com
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