uniBank hits back at KPMG, Nii Dodoo

Three of the defendants sued by the receiver of the uniBank for causing GHC5.7 billion debt to the bank are accusing an audit firm, KPMG, and a receiver, Nii Amanor Dodoo, of issuing a defective report leading to the collapse of the bank.

Represented by Mr Yaw D. Oppong, a legal practitioner, the three — Dr Kwabena Duffour II, Prof. Newman Kwadwo-Kusi and Boatemaa Kakra Duffour-Nyarko — in a counter claim, are arguing that the BoG would not have revoked uniBank’s licence “but for the acts of misrepresentation and the rent-seeking behaviour of KPMG and the receiver”.

The defendants are, accordingly, seeking a declaration that the entire procedure culminating in the purported appointment of KPMG as an official administrator was unlawful, illegal and contrary to the prevailing and acceptable practice and custom of the banking industry and sector.

A further declaration that the appointment of KPMG, “where the plaintiff is a senior partner and the purported auditing led by the self same plaintiff, as well as the appointment of the same plaintiff as receiver, is patently illegal, unlawful and infringes every known law or practice in relation to administrative fairness and transparency and, therefore, ought to be set aside and vehemently unlawful, and impermissible by every measure of legality”.

They are seeking a declaration that the plaintiff was not entitled or authorised by law to set aside, impugn or interfere with any or all the transactions duly entered into between uniBank and any of its customers, whether shareholders or related person, as same were duly sanctioned and conducted in the ordinary course of the banking business of uniBank.

The defendants are pleading with the court to declare that the purported imposition of sanctions and culpability on them for transactions done and concluded prior to the coming into force of Act 930 was contrary to Article 107 of the 1992 Constitution.

According to the defendants, they at all material times performed their duties conscientiously and prudently and which fact the receiver and the BoG had admitted, endorsed, affirmed and accepted in good faith at all material times.

The defendants are arguing that their prudent management of the bank’s resources led to the increase in the bank’s profits.

They also deny abusing their fiduciary duties and further indicate that it was on record to have adhered to all prescribed rules from the BoG.

Estoppel

The defendants are arguing that there was no need for the BoG to appoint an administrator of the bank because the BoG had, “through its accredited officers, validated, affirmed and endorsed substantially the acts of uniBank and its board on the basis of which the Bank of Ghana had, after its painstaking assessment of all the indigenous banks in Ghana, concluded that uniBank was one of three (3) indigenous banks that certainly had the capability to comply with and meet the Bank of Ghana’s new capitalisation requirement of GHC400,000,000 by December 2018”.

According to the defendants, the BoG, after having, through its accredited officers, consistently affirmed the prudent acts of the management of the board of directors, inter alia, were estopped from denying that the board of uniBank in particular had,  over the years, managed the bank prudently.

According to the defendants, it was unjust and inequitable for the Bank of Ghana, by itself or through its agents, to deny that the board members and officers of uniBank failed to manage the bank as a prudent trustee would.

Stating the particulars of estoppel, the defendants are arguing that the applicant was estopped from taking over the bank because: the BoG had, over the years, affirmed the actions of the board of directors, the BoG had confirmed that uniBank was in a position to meet the minimum capital requirement by December 2018 and the BoG had consistently declared uniBank substantially viable

The defendants further argued that the receiver was estopped from taking over the bank because the BoG had been misled by what they termed “discredited portion of the KPMG report signed by the plaintiff herein as its accredited agent or senior officer and who is now purporting to act as a receiver of uniBank and thus making the Bank of Ghana feel compelled to revoke the licence of the uniBank when, indeed, the Bank of Ghana had, at all material times, been aware of the humongous indebtedness of the Government of Ghana, which had been due and owing close to 3 years, a fact which even KPMG admits in its said report”.

The defendants said “the purported compulsory taking possession of the ‘good assets’ of uniBank and the vesting of same in a Consolidated Bank Ghana Ltd”, a public corporation, was contrary to the relevant provisions of the Constitution 1992, including articles 18, 20 and 36.

The suit

Mr Dodoo sued the three and 14 others on September 4, 2018 for breaching their fiduciary duties as directors of the bank, and in the process leaving behind a GH¢5.7-bilion debt.

The plaintiff is, accordingly, praying the High Court to hold the defendants jointly liable for all the loss uniBank Ghana Limited has suffered.

The other defendants are: Dr Kwabena Duffour; HODA Holdings Ltd; HODA Properties Limited; Integrated Properties Limited; Alban Logistics Limited; Starlife Assurance and Bolton Portfolio Limited.

 The rest of the defendants are Opoku Gyamfi Boateng; Owusu Ansah Awere; Ekow Nyarko Dadzie-Dennis; Clifford Duke Mettle; Kofi Kyereh Darkwah, Nana Boakye Asafu-Adjaye and Alex Gaddiel Buabeng.