Awuni shot down over Merchant Bank sale but files appeal

The Executive Director of the Centre for Freedom and Accuracy, Mr Andrews Awuni, yesterday lost his bid to stop the sale of Merchant Bank Ghana Limited to the Fortiz Private Equity Fund when the Commercial Division of the High Court dismissed his application for lack of capacity.

According to the court, presided over by Mrs Justice Sophia Rosetta Benasko Essah, granting Mr Awuni’s capacity would be tantamount to power parity and usurpation of the power of the board of the Social Security and National Insurance Trust (SSNIT) by any contributor to the trust.

The court upheld the application of Mr Tony Lithur, counsel for Fortiz, challenging the capacity of Mr Awuni to sue for an injunction to be placed on the sale of Merchant Bank.

Counsel for Mr Awuni, Mr Egbert Faibille Jnr, soon after the ruling, filed an appeal at the Court of Appeal against the ruling.

Lithur’s application

In his application, Mr Lithur had argued that per the statutes of SSNIT as a trust, it was only a trustee who could successfully pursue a legal action against the trust.

He further stated that the Social Security Act had made SSNIT a corporate entity and was only answerable to the Parliament of Ghana.

To that effect, he said Mr Awuni could not ask SSNIT to account to him.

He, consequently, prayed the court to dismiss Mr Awuni’s application on the grounds that when granted, it would open the floodgates for any other contributor to maintain an action against SSNIT in such related matters.

Rebuttal

In his reply, Mr Faibille rebutted the argument, saying Mr Awuni had the capacity based on the fact that he was a contributor to SSNIT, which owned 90 per cent shares in the bank.

He said the fact that SSNIT was a trustee gave contributors every right to maintain a successful action without the shield of privity of contract.

He said according to Article 296 of the 1992 Constitution, public institutions had responsibilities to act in the best interest of their contributors, adding that the situation, as it stood, did not reflect that.

Appeal

Mr Faibille noted that the notice of appeal was filed after the court handed down its ruling on the case, noting that his client stood a good chance of being successful on appeal.

He expressed disappointment about the ruling by the Commercial Court.

Mr Faibille described as interesting how SSNIT contributors could not raise a challenge when their contributions were being misappropriated and yet employers faced prosecution when they defaulted in payment.

According to him, the battle to stop the sale of Merchant Bank to Fortiz had just begun.

“The most important thing for the Court of Appeal to determine whether it is just and equitable for individual contributors to be compulsorily drag to pay contributions to a trust and when the trust misuses the monies, the beneficiaries cannot raise red flags”, he stated.