The Industrial and Labour Court hearing the case involving Government and the 12 labour unions on Monday adjourned the case for ruling on the motion filed by the second defendant to February 16.
The adjournment was after counsel for the defendants reacted in opposition to the motion filed by the Bank of Ghana (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 does not take into account that the second defendant to the counter claim holds the temporary occupational funds accounts that 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 pensions scheme placed the BoG in a position where it was expected not only to hold the trust funds but also to 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 must 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 would 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 Bank of Ghana, 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 member 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, and therefore there could not be any course of action by any member against the BoG in relation to the funds.
“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”.
He reiterated that the BoG had no interest whatsoever, and prayed the court to allow their application.
The case was later adjourned to February 16 for ruling.
At the last sitting the Counsel for the Bank of Ghana, Samuel Codjoe, moved the motion for the court to strike out a writ against them by the 12 labour unions.
Mr Codjoe said the counter claim did not disclose any course of action against the Bank of Ghana and also was an abuse of the legal process.
He prayed that the counter claim should be dismissed and also the matter to the circumstances be set aside as against the application before the court.
He told the court that the BoG served only as a depository temporary receiver of the funds for the employer, saying under the law BoG, as a depository of the fund set up under section 218, deals with the one who deposited the funds, thus the employer.
He argued that the BoG could not transfer the funds and, therefore, the position the defence counsel was setting was false.
He said if the paragraphs referring to the BoG were struck out, BoG ceased to be a party.
“The relief itself shows that the defence counsel themselves are aware that it is the Government of Ghana (GoG) which is expected to pay monthly remittance in respect of members of the defence into designated bank accounts and not the BoG and, therefore, cannot be held responsible for any purported peculiar losses associated to members of the defence”.
Mr Codjoe said following the alleged failure of the GoG to do its duties, to proceed against the BoG in the circumstance would amount to an abuse of the court process.
The case was later adjourned to February 2 for the defence counsel to react to the motion.
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