Court strikes out Action against BoG by Labour Unions

The Industrial and Labour Court, hearing the case involving Government and the 12 labour unions, has struck out an action against the Bank of Ghana (BoG) by the Labour Unions.

The BoG was joined to the labour suit as the second defendant to the counter claim by the unions on the grounds that it failed to manage funds belonging to the union members.

The unions which are in court with the government over the management of the tier two pension schemes, wanted a disclosure on the management of the funds.

The presiding judge, Mr Justice Anthony Yeboah, upholding the application to take out the BoG from the suit, said the National Pensions Act is specific on the responsibilities of the BoG regarding pension’s fund.

He said the bank's duty in this regard is to keep the funds deposited, and not to manage it, and in this regard the bank is therefore not a necessary party to be joined to the suit.

Mr Justice Yeboah said it would be an abuse of the court process.

He ordered the court registrar to strike out the BoG as the second defendant to the counter claim in the suit.

The substantive case has been adjourned indefinitely ('sine die'), as parties now have to file fresh processes.

At the last sitting, counsel for the defendants, reacted in opposition to the motion filed by the BoG, the second defendant, to set aside the counter claim filed against them by the 12 defendants.

Mr Anthony Akoto-Ampaw, counsel for the defendants, said they were opposed to the application by the BoG, saying, the application was ill-conceived, and did not take into account that the second defendant to the counter claim held the temporary occupational funds accounts vested to members of the defendants.

He said this was the fundamental weak link in their application, and it was clear that the defendants had brought their complaint due to the National Pension’s Act 2008.

He argued that in so far as the BoG was in temporary custody of the trust fund belonging to members of the defendants, they could not escape the duties of a trustee that the law generally imposed on it, saying this was the basic reason why they had been joined as second defendants to the counter-claim.

Mr Akoto-Ampaw said the law enjoined the BoG as the custodians of the said fund, to disclose to the beneficiary workers funds it held to their benefits.

He told the court that all the provisions in the Pensions Act in respect of the occupational pension’s scheme placed the BoG in a position where it was expected not only to hold the trust funds, but to also invest them in any ordinarily prudent manner or business.

According to the counsel, this duty arose not only on the basis of general duties of a trustee, and the position of the application by the BoG would defeat the whole essence of the Pension’s Fund.

He said the second defendant to the counter claim misconstrued its duties as a temporary trustee under the act, and as such ought to be joined as parties to the suit.

“Strike out is a clean case when it is manifestly apparent, even when the facts are proved, the plaintiff will not be entitled to the relief it seeks. An application of this nature ought not to be entered in cases involving serious issues of law. Application is not suitable where issues of law and facts would emerge for the determination of trial”.

Mr Samuel Codjoe, counsel for the BofG, said the submission by the counsel for the defendants was a clear case of an abuse of the court process.

He said the funds in the Trust Fund, vested in the members only where they had been transferred by the board to the approved trustees.

He said the BoG had no access to the account by way of withdrawal, because it had not been licensed by the board.

“It is inappropriate to have sued the BoG, which is not owner of an account, cannot touch the account, and has no legal basis to invest the money”.

Mr Codjoe argued that the interpretation put before the court by the counsel for the defendants, on Act 218 section 14 relating to the duties of the pensions fund managers, did not in any way state or require the BoG to invest the money.

“It is only a person who has access to an account in a bank that can go into the account, or have power to invest the money, and not the bank. The money is just a temporal account by the employer with the BoG”.