FOURTH REPUBLIC
Banking (Amendment) Act, 2007
ARRANGEMENT OF
SECTIONS
Section
1)
Section 2 of
Act 673 amended
2)
Section 3 of
Act 673 amended
3)
Section 4 of
Act 673 amended
4)
Section 5 of
Act 673 amended
5)
Sections 5A,
5B and 5C of Act 673 inserted
6)
Section 6 of
Act 673 amended
7)
Section 7 of
Act 673 amended
8)
Section 8 of
Act 673 amended
9)
Section
8AofAct 673 inserted
10)
Section 9 of
Act 673 amended
11)
Section 12
of Act 673 amended
12)
Section 13
of Act 673 amended
13)
Section 14
of Act 673 amended
14)
Section 16
of Act 673 amended
15)
Section 17
of Act 673 amended
16)
Section 23
of Act 673 amended
17)
Section 29
of Act 673 amended
18)
Section 33
of Act 673 amended
19)
Section 37
of Act 673 amended
20)
Section 38
of Act 673 amended
21)
Section 40
of Act 673 amended
22)
Section 42
of Act 673 amended
23)
Section 46
of Act 673 amended
24)Section 51AofAct
673 inserted 25. Section 60AofAct 673 inserted 26:
Section 62 of Act 673 amended
25)
Sections
69Aand 69B of Act 673 inserted
26)
Section 72
of Act 673 amended
27)
Section 74
of Act 673 amended
28)
Section 83
of Act 673 amended
29)
Section 84
of Act 673 amended
30)
Section
84AofAct 673 inserted
31)
Section 87
of Act 673 amended
32)
Sections
89Aand 89B of Act 673 inserted
33)
Section 90
of Act 673 amended
34)
First,
Second, Third and Fourth Schedules to Act 673
inserted
Act 738
THE SEVEN HUNDRED AND THlRTY-EIGHTH
ACT
OF THE PARLIAMENT OF THE REPUBLIC OF GHANA
ENTITLED
THE BANKING (AMENDMENT) ACT 2007
AN ACT to amend the
Banking Act, 2004 (Act 673) to facilitate the
establishment of an International Financial Services
Centre that seeks to attract foreign direct
investment, income from licence fees payable in
foreign currencies, create employment, enhance local
skills and knowledge, strengthen the financial
sector through expansion in the use of investment
banking instruments and to provide for related
matters.
DATE OF ASSENT:
18th June, 2007.
ENACTED by the
President and Parliament.
Section 2 of Act
673 amended
1. Subsection (1)
of section 2 of the Banking Act, 2004 (Act 673)
referred to as the principal enactment is amended by
the addition of a new paragraph (d), "(d)
ensuring the soundness and stability of the
financial system in this country,"
Section 3 of Act
673 amended
2. The principal
enactment is amended by the substitution for section
3 of
"3. Subject to this
Act, no person other than a body corporate shall
carryon the business of banking in or from within
Ghana."
Section 4 of Act
673 amended
3.
Section 4 of the
principal enactment is amended by the substitution
for section 4 of
"40 (1) A person
shall not carry on the business of banking in or
from within Ghana except by or under the authority
of a license issued in accordance with this Act
(2) A person shall
not use a banking license for any purpose other than
that for which it is issue do
(3) A person who
contravenes subsection (l) and (2) of this section
commits an offence and is liable on summary
conviction
(a)
in case of a body
corporate or other body of persons to a fine not
more than three thousand penalty units; and
(b)
in the case of an
individual to a fine not more than three thousand
penalty units or to a term of imprisonment not
exceeding ten year so
Section 5 of Act
673 amended
4.
Section 5 of the
principal enactment is amended (a) by the
insertion after paragraph (e) of
"(f)
in the case of an
external company registered in Ghana, an
authenticated copy of its certificate of
registration and a written confirmation from the
banking supervisory authority in the applicant's
country of incorporation that the supervisory
authority has no objection to the applicant's
proposal to carry on banking business in Ghana;"
(b)
by the insertion of
new paragraphs (g) and (h)
"(g)
the measures and
structures it intends to adopt to ensure that its
business is conducted in accordance with sound
corporate governance principles;
(h)
the processing fees
and licence fees that the Bank of Ghana may by
notice specify;" and
(c)
by placing the
original paragraph (f) at the end of the
subsection as paragraph (i);
(d)
by the insertion of
a new subsection (2);
"(2) Each
application shall state clearly the type of licence
that is being applied for or
(e)
by the renumbering
of subsection (2) as subsection (3);
(f) by the
insertion of new subsections (4) and (5)
"(4) Where any
document submitted to the Bank of Ghana is not in
the English language, it shall be accompanied with a
certified translation in English.
(5)
The Bank may
require that information supplied to it be verified,
certified or otherwise authenticated in the manner
that the Bank may consider fit."
Sections 5A, 5B
and 5C of Act 673 inserted
5.
The principal
enactment is amended by the insertion of new
sections 5A, 5B and 5c.
"Types of
licences
SA.
A licence issued
under this Act shall be issued subject to the terms
and conditions that the Bank of Ghana may impose and
shall be in one of the following categories:
(a)
General Banking
Licence;
(b)
Class I Banking
Licence; or
(c)
Class II Banking
Licence;
Limitation of
Class II Banking Licence
5B.
Subject to this Act
or any other enactment, the holder of a Class II
Banking Licence shall not
(a)
take deposits or
placements from any person resident in Ghana other
than another bank holding a General Banking Licence
with respect to its Class II banking business, or
another bank holding a Class II Banking Licence;
(b)
invest in an asset
that represents a claim on any person resident in
Ghana except a claim resulting from
(i) a Class II
banking transaction with another bank holding a
General Banking Licence or a Class II Banking
Licence; or
(ii) the purchase
of bonds or other securities issued by the
Government of Ghana or any other securities that may
be approved by the Bank of Ghana; or
(c)
carry on business
in Ghana other than the business for which its Class
II Banking Licence has been issued.
Pre-requisites
for a licence
5c.
A licence shall not
be granted by the Bank, unless it is satisfied with
(a)
the technical
knowledge, experience, financial conditions and
history of the applicant;
(b)
the adequacy of the
capital structure of the applicant;
(c) the character
of the business and its management;
(d)
the adequacy of the
applicants accounting control systems and records;
(e)
in the case of an
applicant incorporated outside Ghana, that the
applicant is a branch or related company of a
foreign bank of established international
reputation; and
(j)
the ability and
willingness of the applicant to comply with the
other conditions that the Bank may impose."
Section 6 of Act
673 amended
6)
The
principal enactment is amended by the substitution
for section 6 of "Provisional approval
6. (1) The Bank of
Ghana may issue a provisional approval for a
specified licence to the applicant on the terms and
conditions that it considers appropriate, fit is
satisfied that
(a)
the applicant will
carryon banking business with integrity, prudence
and the required professional competence;
(b)
the applicant has
and will maintain paid up capital as set out in the
First Schedule and hold a licence of the specified
type as required; and
(c) where the bank
is an external bank, it shall have and maintain in
Ghana the required capital in the form of funds
transferred from abroad together with other funds
that may be determined by the Bank.
(2) The Bank of
Ghana may by notice published in the Gazette,
alter the capital requirements as well as any other
pre-licensing requirements."
Section 7 of Act
673 amended
7.
Section 7 of the
principal enactment is amended;
(a)
by the insertion of
"for a General Banking Licence or a Class I Banking
Licence" after "applicant";
(b)
by the insertion of
a new subsection (2), and
"(2) The applicant
for a Class II Banking Licence shall not invite
capital through a public issue of shares in Ghana."
(c) by the
renumbering of subsection (2) as subsection (3) and
by the insertion of.
"or subsection (2)"
after "subsection (1)".
Section 8
of Act 673
amended
8.
Section 8 of the
principal enactment is amended;
(a)
by the numbering of
section 8 as 8 (1) and the insertion of "of a
specified type".
(b)
by the insertion of
new subsections (2), (3) and (4) "(2) A licence
issued under this Act shall
(a)
be subject to the
conditions that the Bank may impose; (b) in
the case of a bank holding a General Banking Licence
or a Class I Banking Licence, not authorise that
bank to carry on business in any office or branch,
other than its principal place of business, unless
it has obtained the prior approval of the Bank;
(c)
in the case of a
bank holding a Class II Banking Licence, not
authorise that bank to have more than one place of
business for the purpose of Class II banking;
(3) The holder of a
licence issued under this Act shall pay the annual
licence fees that the Bank of Ghana may specify by
notice.
(4) No licence
granted by the Bank of Ghana shall be transferable
or assignable without the prior approval of the
Bank."
Section 5A of
Act 673 inserted
9)
The
principal enactment is amended by the insertion of
section 8A after section 8 "Power to vary conditions
of licences
8A. (1) The Bank of
Ghana may, by notice in writing to a bank, inform
the bank that it proposes to impose, amend, add to,
vary or cancel any condition attached to the licence
of the bank.
(2) The bank may,
within seven days after the receipt of the notice,
make representations in writing to the Bank.
(3) The Bank shall,
''take a decision and notify the bank accordingly
after giving due consideration to the
representations made".
Section 9 of Act
673 amended
10. Section 9 of
the principal enactment is amended in subsection 3
by the insertion of within ten days after the
decision of the Bank" after "writing".
Section 12 of Act
673 amended
11. Section 12 of
the principal enactment is amended by the
substitution for subsection (8) of
"(8) The Bank of
Ghana may, subject to the terms and conditions that
it considers fit, exempt a bank holding a Class II
Banking Licence or a General Banking Licence, with
respect to its Class II banking business or
investment banking business in currencies other than
the currency of Ghana, from compliance with this
section in so far as the activities referred to in
these subsections are carried on outside Ghana and
do not involve the acquisition of an interest in
movable or immovable property in Ghana."
Section 13 of
Act 673 amended
12.
Section 13 of the
principal enactment is amended by the insertion of
new paragraphs (d), (e), (f) and (g)
"(d)
the bank has gone
into liquidation or is wound up or otherwise
dissolved; or
(e)
the bank has
insufficient assets to cover its liabilities to its
depositers or the public; or
(f)
the bank appears to
the Bank of Ghana to be carrying on business in a
manner which is contrary or detrimental to the
interests of its depositors or the public; or
(g)
the bank has been
convicted by a domestic Court or any other Court as
may be prescribed, of a crime related to the use or
laundering in any manner of illegal drug proceeds,
or is the affiliate or subsidiary of a parent
company of a bank which has been so convicted, if
the conviction is a final conviction."
Section 14
of Act
673 amended
13.
Section 14 of the
principal enactment is amended by the insertion of
new subsections (4), (5) and (6)
"(4) Despite
subsections (1) to (3), the Bank of Ghana may in
cases of emergency, or in the public interest revoke
the licence of a bank with immediate effect.
(5) The bank whose
licence has been revoked may, within thirty days
after the communication of the decision under
subsection (4) make representations to the Bank.
(6) The Bank of
Ghana shall, within ten days after representations
made, review the action taken by it and inform the
bank in writing".
Section 16
of Act
673 amended
14.
Section 16 of the
principal enactment is amended by the insertion of
the words "or in breach of the conditions of its
licence" after "licence".
Section 17 of
Act 673 amended
15.
Section 17 of the
principal enactment is amended by the substitution
for section (1) of
"(1) Except as
otherwise provided for in this Act, no person, other
than a bank, shall hold itself out as a bank or use
the word "bank" or any of its derivatives in any
language in the description or title under which
that person is carrying on business in Ghana, or
make a representation to this effect in any
billhead, letter, paper, notice, advertisement or in
any other manner what so-
Section 23 of
Act 673 amended
16.
Section 23 of the
principal enactment is amended by the substitution
for that section of
"Capital
adequacy
23. (1) A bank
holding a General Banking Licence shall at all times
while in operation, maintain a minimum capital
adequacy ratio often per cent computed in the manner
that the Bank of Ghana may determine.
(2) A bank holding
a Class I Banking Licence shall at all times while
in operation maintain a capital adequacy ratio often
per cent.
(3) A bank holding
a Class n Banking Licence shall at all times while
in operation maintain a capital adequacy ratio of
the percentage that the Bank may determine.
(4) The percentage
mentioned in subsection (3) shall be determined by
the Bank of Ghana from time to time, after
discussions with the bank, and shall not necessarily
be the same for all banks or all banks of that
class.
(5) In determining
the percentage mentioned in subsection (3), the Bank
shall in each case
have regard to
(a)
other financial
resources available to the bank in question; (b)
the nature, scale and risks of the bank's
operations; and
(c)
the amount and
nature of net own funds required, in the Bank's
judgment, to protect the interests of depositors and
potential depositors and the public.
(6) The Bank of
Ghana may by directive prescribe a higher capital
adequacy ratio with respect to a particular bank or
all banks for the period that the Bank may
prescribe.
(7) The capital
adequacy radio shall be measured as a percentage of
the adjusted capital base of the bank to its
adjusted asset base in accordance with Regulations
made by the Bank of Ghana."
Section 29 of
Act 673 amended
17.
Section 29 of the
principal enactment is amended in subsection 1 by
the insertion of the words "holding a General
Banking Licence or a bank holding a Class I Banking
Licence" at the beginning of the subsection.
Section 33 of
Act 673 amended
18.
Section 33 of the
principal enactment is amended by the substitution
for subsection (5) of
"(5) The Bank of
Ghana may require a bank to furnish information by a
specified date in a form that it may consider
appropriate to ensure compliance with the
requirements of this section."
Section 37 of
Act 673 amended
19. Section 37 of
the principal enactment is amended in subsection (1)
by the addition of "do anyone or combination of the
following" after "directive"."
Section 38 of
Act 673 amended
20.
Section 38 of the
principal enactment is amended
(a)
by the substitution
for "has been declared to be of unsound mind" of
"has been adjudged to be of unsound mind" at the
beginning of subsection(l) (a);
(b)
by the deletion of
paragraph (1) (e) and the addition of a new
paragraph "(e) is a director, chief
executive or employee of another bank." (c)
by the addition of a new subsection (4)
"(4) Section 38 (1)
(e) shall not apply where
(a)
a person appointed
as a director for the ARB Apex Bank Limited is a
representative of a bank that is an affiliate to the
ARB Apex Bank Limited; or
(b)
in the opinion of
the Bank of Ghana, special circumstances require
that the person be appointed as director of another
bank."
Section 40 of
Act 673 amended
21.
The principal
enactment is amended by the substitution for section
40 of "Intervention of the Bank of Ghana
in appointments
40. (1) A bank
shall give prior notice to the Bank of Ghana before
it appoints a Chief Executive Officer or a Deputy
Chief Executive Officer of the bank, each of whom
shall be ordinarily resident in the country.
(2) Where the bank
appoints a Managing Director, that person shall be
the Chief Executive Officer of the bank.
(3) In the case of
an external company, the Chief Executive Officer of
the bank shall also be the local manager of that
company.
(4) Where the Chief
Executive Officer is unable to perform official
functions due to illness, absence from the country
or any other sufficient cause, the Deputy Chief
Executive Officer shall act as the chief executive
after notifying the Bank of Ghana.
(5) A bank shall
notify the Bank of Ghana of the changes in the
membership of its board of directors and key
management personnel of a bank in the case of a bank
incorporated in Ghana, and in each other case, the
changes in its key management personnel only.
(6) A person shall
not be appointed or reappointed as director or as a
member of key management personnel unless the
appointment or reappointment takes into account
guidelines issued by the Bank of Ghana related to
fit and proper persons.
(7) Where the Bank
of Ghana considers that a director or a member of
the key management personnel is not a fit and proper
person, it shall direct the removal of the director
or person after hearing the bank and the bank shall
comply.
(8) A bank shall
not outsource any of its functions to any other
person without the approval of the Bank of Ghana.
(9) A bank which
contravenes any provision of this section shall pay
to the Bank of Ghana a fine of one thousand penalty
units".
Section 42 of
Act 673 amended
22.
Section 42 of the
principal enactment is amended in subsection (1) by
the insertion of "holding a General Banking Licence
or a bank holding a Class I Banking Licence" after
"bank" where the word first appears.
Section 46 of
Act 673 amended
23.
Section 46 ofthe
principal enactment is amended in subsection (1) by
the insertion of "or a branch" after "company".
Section 51A of
Act 673 inserted
24.
The principal
enactment is amended by the insertion of a new
section 51A "Guidelines
51 A. (1) The Bank
of Ghana may by notice provide for the payment of
fees and the levying of charges under this Act.
(2) The Bank of
Ghana may by notice exclude from the application of
any part of this Act banks holding a General Banking
Licence or a Class II Banking Licence or any class
of either of these banks subject to the terms and
conditions that it considers fit.
(3) The Bank of
Ghana may by notice make such guidelines or issue
instructions that it considers fit for the purpose
of this Act.
(4) Guidelines or
instructions made under subsection (4) shall apply
to all banks or to one or more classes of banks and
shall take effect on the date of their issue to the
banks or on a later date that may be specified in
the guidelines.
(5) Any person to
whom guidelines apply or instructions are issued
shall comply with the guidelines and instructions.
(6) Any person who
fails to comply with the guidelines or instructions
made under this section commits an offence and is
liable on summary conviction to a fine of one
thousand penalty units."
Section 60A of
Act 673 inserted
25.
The principal
enactment is amended by the insertion of new
sections 60A, 60B and 60C.
"Appointment of
adviser
60A. (1) The Bank
of Ghana may, if it considers it necessary to
improve the affairs of a bank after examining a
bank's explanation, appoint a competent person as
adviser to the bank's chief executive at the expense
of the bank. (2) The Bank of Ghana may give a
hearing to the bank before issuing the order unless
it considers that the consequent delay in action
would not be in the interest of the bank.
(3) A bank which is
served with an order shall comply with the order and
extend full co-operation to the adviser.
(4) An adviser
appointed under this section is entitled to attend
the meetings of the board of directors of the bank
or its committees, and to participate in their
deliberations.
(5) The adviser's
views shall be recorded in the minutes of the
meetings, but the adviser shall not vote on a matter
for determination by the meeting.
(6) (a) An
adviser appointed under this section 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 as
frequently as the Bank of Ghana may determine.
Remedial
measures
60B. Where the Bank
of Ghana is satisfied after an examination under
section 55 or otherwise based on the information at
its disposal, that a bank (a) has failed to
comply with a provision of this Act or of
Regulations or rules or directives issued under this
Act;
(b)
has been conducting
its affairs in a manner detrimental to the interests
of its depositors and creditors; or
(c)
no longer possesses
sufficient net own funds or is unlikely to fulfill
its obligations towards its depositors and
creditors; the Bank of Ghana may
(i) prohibit the
bank from receiving fresh deposits or renewing the
existing deposits;
(ii) prohibit the
bank from further lending or taking further
financial exposures, or capital expenditure;
(iii) prohibit the
bank from paying a dividend on its equity capital or
issue rights shares or bonus shares to shareholders
or to any person claiming under their authority;
(iv) suspend or
remove from office the chief executive of the bank
or restrict the chief executive's powers;
(v) recommend the
removal from any or all of the directors on the
board of the bank or restrict their powers;
(vi) appoint a
conservator to take over the management of the bank,
pending a decision on the bank's future set-up;
(vii) revoke the
licence issued to the bank to carry on banking; or
(viii) appoint a liquidator for the winding-up of
the bank.
Appointment and
the rights and responsibilities of conservator
60C (1) Where the
Bank of Ghana appoints a conservator, the
conservator
(a) holds
office for the period or the extended period that
the order may specify, unless the appointment is
terminated by the Bank of Ghana;
(b)
draws salary and
other emoluments from the bank which shall provide
the conservator with the perquisites and amenities
specified in the letter of appointment of the
conservator;
(c)
has the powers of
the chief executive to do the things that may be
necessary for the management of the affairs,
business and property of the bank;
(d)
may attend the
meetings of the board of the bank and its
committees and move a resolution that the
conservator considers appropriate and vote on any
subject at those meetings; and (e) may
appoint competent officials to assist the
conservator or delegate authority to other
officials.
(2) Where there is
a conflict between an order issued by the
conservator and an order given by a director, the
chief executive or any other official of the bank in
the past, the order of the conservator shall
prevail.
(3) The conservator
may,
(a)
set aside a
decision of the bank's board taken against the
conservator's recommendation, or
(b)
move a resolution
at a general meeting of the bank's shareholders, or
(c)
hold up a decision
taken at the general meeting of the shareholders if
the conservator considers it to be prejudicial to
the interest of depositors,
with the prior
approval in writing of the Bank of Ghana,
(4) The conservator
shall not be subject to any action, claim or
liability in respect of an act done in good faith in
pursuance of a power or duty conferred or imposed
upon the conservator in terms of the conservator's
appointment.
Section 62 of
Act 673 amended
26.
The principal
enactment is amended in subsection (2) of section 62
by the substitution for "petition the High Court" of
"appoint a liquidator"
Sections 69A and
69B of Act 673 inserted
27.
The principal
enactment is amended by the deletion of "voluntary"
in the head note of section 69 and the insertion of
new sections 69 A and 69B
"Priority of
deposit liabilities
69A. Where a bank
becomes unable to meet its obligations or becomes
insolvent or suspends payment, the assets of that
bank in Ghana shall be available to meet the deposit
liabilities of the bank in Ghana and those deposits
shall have priority over the unsecured liabilities
of the bank other than those expenses and debts
specified in the Bodies Corporate (Official
Liquidation) Act 1963 (Act 180) to have priority of
claim over other liabilities of the company in the
event of a winding up.
Priority in the
event of winding
up
69B. (1) Despite
the provisions of any other enactment, in the event
of a winding up of a bank that carries on Class I
and Class II banking business, the deposit
liabilities of the bank shall be settled in the
following manner:
(a)
the assets of the
bank held, as determined under this Act and by the
Bank of Ghana, in relation to the Class I banking
business of the bank shall be available to meet the
deposit liabilities of the bank in the following
order of priority;
(i) deposit
liabilities incurred by the bank in the course of
its Class I banking business with non-bank
customers,
(ii) deposit
liabilities incurred by the bank, in the course of
its Class I banking business, with other banks in
respect of their Class I banking business,
(iii) deposit
liabilities incurred by the bank in the course of
its Class I banking business with other banks
including those incurred with its own bank with
respect to its Class II banking business,
(iv) subject to the
Bodies Corporate (Official Liquidation) Act, 1963
(Act 180) other liabilities incurred by the bank in
the course of its Class I banking business, (v)
deposit liabilities incurred by the bank in the
course of its Class II banking business with
non-bank customers,
(vi) deposit
liabilities incurred by the bank in the course of
its Class II banking business with other banks,
(vii) subject to the Bodies Corporate (Official
Liquidation) Act, 1963 (Act 180) other liabilities
of the bank incurred in the course of its Class II
banking business.
(b)
The assets of the
bank held, as determined under this Act and by the
Bank of Ghana, in relation to the Class II banking
business of the bank, shall be available to meet
the deposit liabilities of the bank in the
following order of priority;
(i) deposit
liabilities incurred by the bank in the course of
its Class II banking business with non-bank
customers,
(ii) deposit
liabilities incurred by the bank in the course of
its Class II banking business with other banks,
(iii) subject to the Bodies Corporate (Official
Liquidation) Act, 1963 (Act 180) other liabilities
incurred by the bank in the course of its Class II
banking business, (iv) deposit liabilities incurred
by the bank in the course of its Class I banking
business with non-bank customers,
(v) deposit
liabilities incurred by the bank in the course of
its Class I banking business with other banks,
(vi) subject to the
Bodies Corporate (Official Liquidation) Act, other
liabilities of the bank incurred in the course of
its Class I banking business.
(2) Despite the
provisions of any other enactment, in the event of a
winding up of a bank that is licensed to carry on
Class I banking business only, the deposit
liabilities of the bank shall be settled in the
following order of priority:
(a)
deposit liabilities
incurred by the bank with non-bank customers; (b)
deposit liabilities incurred by the bank with
other banks;
(c)
subject to the
Bodies Corporate (Official Liquidation) Act, 1963
(Act 180) other liabilities incurred by the bank.
(3) Despite the
provisions of any other enactment, in the event of a
winding up of a bank that is licensed to carry on
Class II banking business only, the deposit
liabilities of the bank shall be settled in the
following order of priority:
(a)
deposit liabilities
incurred by the bank with non-bank customers;
(b)
deposit liabilities
incurred by the bank with other banks;
(c)
subject to the
Bodies Corporate (Official Liquidation) Act, 1963
(Act 180) other liabilities incurred by the ban1e
(4) The deposit or
other liabilities in each class specified in
subsections (1), (2), or (3) shall rank in the
order specified but as between deposit or other
liabilities of the same class rank equally between
themselves and shall be paid in full unless the
assets of the bank are insufficient to meet them in
which case they shall be settled in equal
proportions between themselves.
( 5) For the
purpose of section 69 A and this section, "deposit
liabilities" means sums of money paid on terms
(a)
under which they
will be repaid, with or without interest or at a
premium, and either on demand or at a time or
incircumstances agreed by or on behalf of the
persons making the payment and the bank receiving
them;
(b)
which are not
referable to the provisions of property or services
or to the giving of security;
"bank" means a bank
as defined in section 90 of this Act and any person
licensed as a bank or permitted to carry on banking
business in the country in which it is incorporated.
(6) For the purpose
of subsection ( 5) (b), money is paid on terms or to
the giving of security if, and only if
(a)
it is paid byway of
advance or part-payment for the sale, hire or other
provision of property or services of any kind and is
repayable only in the event that the property or
services is or are not in fact sold, hired or
otherwise provided,
(b)
it is paid byway of
security for payment for the provision of property
or services of any kind provided or to be provided
by the bank by whom or on whose behalf the money is
accepted; or
(c)
it is paid byway of
security for the delivery or return of property,
whether in a particular state of repair or
otherwise."
Section 72 of
Act 673 amended
28.
Section 72 of the
principal enactment is amended in subsection (2) by
the addition of "or as the Bank of Ghana may
otherwise approve" at the end of the subsection.
Section 74 of
Act 673 amended
29.
Section 74 of the
principal enactment is amended in subsection 1 by
the insertion of approved by the Bank of Ghana in
the manner and on the terms that may be prescribed"
after "bank."
Section 83 of
Act 673 amended
30.
The principal
enactment is amended by the substitution for section
83 of "Secrecy of information
83. (1) Each
Director, officer or employee ofthe Bank or any
person appointed by the Bank pursuant to the banking
laws shall
(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
Second 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 Second Schedule,
before the person
begins to perform any functions under the banking
laws. (2) 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 with any other relevant
supervisory body; or
(b)
when lawfully
required to do so,
(i) by an order of
a Judge in chambers or any court of law; or
(ii) under any
enactment,
no person referred
to in subsection (1) shall, during and after a
relationship with the Bank, disclose directly or
indirectly to any person any information related to
the affairs of the Bank, or any other bank or of any
of its customers, which the person has acquired in
the discharge of duties or the performance of
functions.
(3) Any person who
contravenes this section commits an offence and is
liable on summary conviction to a fine not exceeding
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 and a foreign
regulatory agency performing functions similar to
those of the Bank under this Act, pursuant to any
existing or future Treaty, or agreement or
Memorandum of Understanding entered into by the Bank
or the Republic of Ghana;
(b)
the disclosure of
information pursuant to an order made by the Judge
in chambers under any relevant enactment related to
mutual assistance in criminal and related matters to
a foreign state; or
(c)
the disclosure of
information to the Financial Intelligence Centre
set-up under the Anti-Money Laundering Law in force.
Section 84 of
Act 673 amended
31.
The principal
enactment is amended by substitution for section 84
of "Secrecy of customer information
84. (1) Subject to
the other provisions of this Act, each person with
access to the books, accounts, records, financial
statements or other documents, whether
electronically or otherwise, of a bank shall:
(a)
in the case 0 f a
director or key management personnel, take an oath
of confidentiality in the form set out in Part I of
the Third Schedule; or
(b)
in any other case,
make a declaration of confidentiality before the
chief executive officer or deputy chief executive
officer of the bank in the form set out in Part II
of the Third Schedule, before the person begins to
perform any function under the banking laws.
(2) Except for the
purpose of the performance of functions or the
exercise of a power under the banking laws or as
directed in writing by the Bank, no person referred
to in subsection (1) shall, during or after a
relationship with the bank, 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 where
(a)
a customer who had
been issued a credit card or charge card by a bank,
has had the card suspended or cancelled by the bank
by reason of default in payment, and the bank
discloses information related to the customer's name
and identity, the amount of indebtedness and the
date of suspension or cancellation of the credit
card or charge card to other banks issuing credit
cards or charge cards in Ghana;
(b)
the customer is
declared bankrupt in Ghana or, in the case of a
company, is being wound up; bank
(c)
the customer has
passed away, 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
estate;
(d)
civil proceedings
arise involving the bank and the customer or the
account of the customer;
(e)
the information is
required by a colleague in the employment of the
same bank in Ghana or an auditor or legal
representative of the bank who requires and is
entitled to know the information in the course of
professional duties;
(f)
the information is
required by another bank 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;
(g)
the bank has been
served with a garnishee order attaching moneys in
the account of the customer;
(h)
any person referred
to in subsection (1) is summoned to appear before a
court or a Judge in Ghana and the court or the Judge
orders the disclosure of the information;
(i)
the bank is
required to make a report or provides additional
information on a suspicious transaction to the
Financial Intelligence Centre set up under the Anti
-Money Laundering law in force.
(4) Subject to
subsections (6) and (7), where the head office of a
(a)
incorporated
outside Ghana requires information from its branch
in Ghana about any transaction of that branch; or
(b)
incorporated in
Ghana requires information from its branch outside
Ghana about any transaction of that branch;
the information
shall be disclosed.
(5) Subject to
subsections (6) and (7), where the parent bank of a
subsidiary, which subsidiary is operating in Ghana
under consolidated supervision, requires
information from the subsidiary about any of the
transactions of the subsidiary, the information
shall be disclosed.
(6) Where the
information which is required under subsection (4)
or (5) relates to a transaction with a customer
other than a bank, no information other than credit
facilities granted to or foreign exchange
transactions with the customer shall be disclosed.
(7) No 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 be disclosed.
(8) Where an
officer of a foreign bank or an officer of a central
bank or banking regulator in a foreign country or
any other entity or agency, by whatever named
called, has the responsibility to supervise banks or
perform the functions of a central bank, proposes to
conduct an inquiry, audit or inspection of a branch
or a subsidiary of the bank in Ghana or carry out
other action that would involve the duty of
confidentiality imposed under this section, the
officer shall obtain the prior written authorisation
of the Bank and be subject to the duty of
confidentiality imposed under this section and any
conditions that the Bank may impose before
information of a confidential nature is made
available to the office.
(9) The Bank of
Ghana or any other competent authority in Ghana or
outside Ghana which requires information from a bank
related to the transactions and accounts of any
person, may apply to a Judge in chambers for an
order of disclosure of the transactions and accounts
or the part which may be necessary.
(10) The Judge in
chambers shall not make an order of disclosure
unless satisfied that
(a)
the applicant is
acting in the discharge of official duty;
(b)
the information is
material to civil or criminal proceedings, whether
pending or contemplated or is required for the
purpose of an enquiry into or related to the
trafficking of narcotic and dangerous drugs, arms
trafficking, offences related to terrorism or money
laundering; or
(c)
the disclosure is
otherwise necessary, in the circumstances.
(11) Subject to the
other provisions of this Act, the Bank or any person
making an inspection or conducting an examination
for it under the banking laws shall not reveal,
unless required by a court so to do, to any person
information in relation to the affairs of a customer
obtained in the course of an inspection made or of
an examination conducted under the banking laws.
(12) Despite
subsection (11), the Bank may disclose to the
auditor of a bank any information received under or
for the purposes of this Act where it considers that
disclosing the information would enable or assist it
in the discharge of its supervisory duties.
(13) This section
shall be without limiting the obligations of the
Republic of Ghana under an international treaty,
convention or agreement and to the obligations of
the central bank under any concordat or arrangement
or under any existing or future memorandum of
understanding for co-operation and exchange of
information between the Bank and any other foreign
regulatory agency performing functions similar to
those of the Bank.
(14) Subject to
section 84A and 85, in the event of any conflict or
inconsistency between any provision of this section
and the provisions of any other enactment, the
provisions of this section shall prevail
Section 84A of
Act 673 inserted
32.
The principal
enactment is amended by the insertion of a new
section 84A "Agreements for exchange of
information
84A. The Bank may,
for the purpose of establishing and maintaining
links and liaison with international agencies in the
field of banking as may be necessary for the
furtherance of its objects, enter into an agreement
or arrangement for the exchange of information with
a foreign supervisory institution with
responsibility to supervise banks or other similar
institutions, where the Bank is satisfied that the
foreign supervisory institution has the obligation
to protect the confidentiality of the information
imparted."
Section 87 of
Act 673 amended
33.
The principal
enactment is amended by the substitution for section
87 of "Immunity
87. No action shall
lie against the Government, the Bank of Ghana, any
officer of the Bank or any person acting under the
direction of the Bank for anything done or omitted
to be done in good faith in the administration of
this Act, or in the execution of any powers or
discharge of duties authorised or required under any
other enactment that are relevant to this Act."
Sections 89A and
89B of Act 673 inserted
34.
The principal
enactment is amended by the insertion of new
sections 89 A and 89B
"Payments by
Class II banks
89 A. A Class II
Bank is entitled to open and maintain with a bank
holding a Class I Banking Licence or a bank holding
a General Banking Licence, and with the approval of
the Bank of Ghana, an account in cedis out of which
payments by way of salaries, remuneration, fees,
fines, penalties and other proper local payment
shall be made.
Exemptions
89B. (1) A holder
of a Class II Banking Licence is exempt :from
payment of duty, levy charge, fee or tax imposed by
the enactments specified in the Fourth Schedule to
this Act in respect of
(a)
its Class II
banking transactions,
(b)
its dealing with
residents with the approval of the Bank of Ghana,
and
(c)
any authorised
dealing in property in Ghana.
(2) A holder of a
General Banking Licence is exempt from payment of
duty, levy, charge, fee or tax imposed by the
enactments specified in the Fourth Schedule in
respect of its banking transactions with a
non-citizen who is a non-resident."
Section 90 of
Act 673 amended
35.
The principal
enactment is amended in section 90 by (a) the
substitution for the definition of” bank" of
" "bank" means a
company incorporated under the laws of Ghana, or a
branch of a company incorporated abroad, which is
licensed in accordance with this Act, to conduct:
(a)
general banking
under a General Banking Licence; or (b) Class
I banking, under a Class I Banking Licence; or
(c) Class II banking, under a Class II Banking
Licence, from within Ghana."
(b) the
insertion of the definition of ''banking business"
means
(a)
accepting deposits
of money from the public, repayable on demand or
otherwise and withdrawable by cheque, draft, orders
or by any other means;
(b)
financing, whether
in whole or in part or by way of short, medium or
long term loans or advance, of trade, industry,
commerce or agriculture, and
(c)
any other business
activities that the Bank of Ghana may prescribe or
recognise as being part of banking business. after
"bank" "
(c)
by the insertion of
the new definitions before the definition of
"connected lending"
" "conservator"
means a person who performs the function of a
conservator as specified in this Act;
"Class I banking"
means banking business other than Class II banking
business;
"Class II banking
business" means banking business or investment
banking business conducted in currencies other than
the Ghanaian currency except to the extent permitted
by the Bank of Ghana for trading on the foreign
exchange market of Ghana and investment in money
market instruments;
"Class I Banking
Licence" means a licence authorising the holder to
transact Class I banking business;
"Class II Banking
Licence" means a licence authorising the holder to
transact Class II banking business;
"Class II banking
transactions" means transactions effected by a bank
holding a Class II Banking Licence pursuant to its
licence or transactions of a similar nature effected
by a bank holding a General Banking Licence pursuant
to that licence;" and
"concordat"
means agreement.
(d)
by the insertion of
new definitions after "financial exposure"
" "general banking
business" means Class I and Class II banking
business;
"General Banking
Licence" means a licence authorising the ho lder to
transact Class I and Class II banking business in
and rrom within Ghana;
"key management
personnel" means
(a)
the chief executive
officer, deputy chief executive officer, chief
operating officer, chief financial officer,
secretary, treasurer, chief internal auditor or
manager of a significant business unit ofthe bank;
or
(b)
any person with
similar responsibilities as a person in paragraph
(a);"
(e)
by the insertion of
new definitions after "net worth" of
" "non-resident"
means any person who does not normally reside or
carry on business in Ghana";
"ordinarily
resident" means a situation where a person has lived
in this country for at least twelve months;"
(f)
by the insertion of
a new definition after "prescribed" of
" "public interest"
includes a right or advantage which enures or is
intended to enure to the general benefit of the
people of this country."
First, Second,
Third and Fourth Schedules to Act 673 inserted
36. The principal
enactment is amended by the insertion of new
Schedules:
Type of Licence
General Banking
Business Rural Banks
Class I Banking
Licence
Class II Banking
Licence
Rural Banks
"FIRST SCHEDULE
(Section
6 (1) (b))
Type of Bank
Minimum Initial Paid up Capital
(after deduction of
accumulated losses)
All types
Seventy billion cedis in relation to
its Class I Banking
Business in a currency and other amounts, as the
Bank of Ghana may determine.
An amount in a
currency as the bank of Ghana may determine from
time to time. 500 million cedis in relation to rural
Banks.
SECOND
SCHEDULE
Part I
(Section
83 (1)
(a))
Oath of
confidentiality
IN THE HIGH COURT
OF GHANA
1.
...............................................................................................
being
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 or of any other
bank 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 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
83 (1)
(b))
Declaration of
confidentiality
I
....................................................................................................
being
appointed do hereby declare
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 0 f
the Bank or of any other bank or the affairs of any
of their customers, otherwise than for the purposes
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 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. .
Made before me, .
Name .
The chairperson ofthe Board on (date)
THIRD
SCHEDULE
Part I
(Section
84 (1) (a))
Oath of confidentiality
IN THE HIGH COURT
OF GHANA
I
....................................................................................................
being
appointed do hereby swear/
solemnly affirm
that I shall maintain during or after my
relationship with
............................................... the
confidentiality of any matter related to the banking
laws which come to my knowledge and shall not, on
any account and at any time, disclose directly or
indirectly to any person, any matter or information
related to the affairs of otherwise than for
the purpose of the
performance of my function or the exercise of my
powers under the banking laws or when lawfully
required to do so by a Judge in chambers or any
court of law or under any enactment.
Signature of declarant. .
Taken before me, .
The Registrar of the High Court on ( date)
Part II
(Section 84 (1) (b))
Declaration of
confidentiality
I,
.................................................................................................
being
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
Officer on ..................................................................................
. .........
date)
FOURTH
SCHEDULE (Section 89B)
Value Added Tax
Act, 1998 (Act 546); Internal Revenue Act, 2000 (Act
592); Financial Administration Act, 2003 (Act 654);
Stamp Duty Act, 2005 (Act 689); and other Acts
specified by the Minister."
.
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