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21 1989

TRUSTEE SAVINGS BANKS ACT, 1989

PART V

Management and Administration of Trustee Savings Banks

Annual accounts of trustee savings bank.

35. —(1) The trustees of a trustee savings bank shall make up in respect of each financial year of the bank an income and expenditure account and a balance sheet.

(2) An income and expenditure account of a trustee savings bank shall, subject to the non-disclosure of any matters (which shall be indicated in the account) not required to be disclosed, give a true and fair view of the income and expenditure of the bank for the financial year concerned and its balance sheet shall give a true and fair view of the state of affairs of the bank as at the end of the financial year concerned.

(3) An income and expenditure account and a balance sheet of a trustee savings bank—

(a) shall, subject to the non-disclosure of any matters (which, in so far as they relate to the balance sheet, shall be indicated therein) which are not required to be disclosed, be in such form and shall contain such particulars as the Central Bank may specify in a direction either generally or in respect of a specified trustee savings bank or trustee savings banks or class of trustee savings bank, and

(b) shall, unless the Central Bank specifies otherwise in a direction, include, for the purpose of comparison, particulars for the financial year immediately preceding that to which they relate corresponding to the particulars contained in the income and expenditure account and balance sheet.

(4) A balance sheet and an income and expenditure account of a trustee savings bank shall be signed by not less than 2 trustees of the bank and by the secretary or a manager of the bank.

(5) A copy of the balance sheet and income and expenditure account of a trustee savings bank for a financial year of the bank and of the auditor's report thereon shall be submitted to the Minister and the Central Bank by the trustees of the bank as soon as may be after the completion of the audit of the accounts of the bank for that year.

Appointment, qualification and removal of auditor of trustee savings bank.

36. —(1) The trustees of a trustee savings bank shall in each financial year of the bank appoint an auditor to audit the accounts of the bank for that year and a retiring auditor shall be eligible for re-appointment under this subsection.

(2) Notwithstanding any agreement between the trustees of a trustee savings bank and an auditor, and without prejudice to any rights of the auditor in relation to his removal under this Act, the trustees may remove an auditor before his term of office expires and may appoint in his place any other person who is qualified under this Act to be an auditor of a society and of whose nomination due notice has been given to the Central Bank.

(3) If an auditor is not appointed under subsection (1) to a trustee savings bank within 3 months from the commencement of a financial year of the bank, the Central Bank may appoint and auditor to the bank for that financial year and his remuneration and expenses may be fixed by the Central Bank.

(4) A person shall not be qualified for appointment as auditor of a trustee savings bank unless he is a member of a body of accountants for the time being recognised by the Minister for Industry and Commerce for the purposes of section 162 of the Act of 1963 or is for the time being authorised by the Minister for Industry and Commerce under paragraph (b) of subsection (1) of that section.

(5) If an auditor is convicted of an offence arising out of or connected with the performance of his duties, or his conduct, as an auditor, he shall be disqualified for being an auditor of a trustee savings bank.

(6) A trustee savings bank shall—

(a) within one week of the Central Bank's power under subsection (3) becoming exercisable, give the Central Bank notice of that fact, and

(b) where its auditor is removed under subsection (2), give notice of that fact to the Central Bank in such form as may be required by the Central Bank within 14 days of such removal.

(7) The trustees of a trustee savings bank may fill any casual vacancy in the office of auditor but, while any such vacancy continues, the surviving or continuing auditor or auditors, if any, may act.

(8) The appointment of a firm by the name of the firm to be the auditor of a trustee savings bank shall be deemed to be an appointment of those persons who from time to time during the period of the appointment are the partners in that firm as from time to time constituted and are qualified to be auditors of the bank.

(9) Where the Central Bank is of opinion that it would not be in the interest of a trustee savings bank or in the interest of its depositors to appoint or re-appoint to the office of auditor, or to fill a casual vacancy in that office with, a named person, it may direct the trustees accordingly and the direction shall be complied with.

(10) None of the following persons shall be qualified for being an auditor of a trustee savings bank:

(a) an officer or employee of the bank,

(b) a person who is a partner, employer or employee of an officer or employee of the bank,

(c) a body corporate,

(d) a person who has been an officer or employee of the bank within a period in respect of which accounts would fall to be audited by him if he were appointed auditor of the bank,

(e) a spouse (or a person living together with an officer of the bank as a spouse) parent, step-parent, child, step-child, brother, sister, half-brother or half-sister of an officer of the bank,

(f) a person who is disqualified under the Companies Acts for appointment as auditor of a subsidiary or holding company of the bank or a subsidiary of the bank's holding company.

(11) A person shall not act as auditor of a trustee savings bank at a time when he is disqualified under this Act for appointment to that office and, if an auditor of a trustee savings bank becomes so disqualified during his term of office as such auditor, he shall thereupon vacate his office and give notice in writing to the bank and to the Central Bank that he has vacated his office by reason of such disqualification.

(12) A person who contravenes subsection (11) shall be guilty of an offence.

Report of auditor of trustee savings bank and right of access to its books.

37. —(1) The auditor of a trustee savings bank shall make a report annually to the trustees of the bank on the accounts of the bank examined by him and on every balance sheet and every income and expenditure account of the bank made up by the trustees pursuant to section 35 during his tenure of office.

(2) The auditor's report in relation to a trustee savings bank shall state whether—

(a) he has obtained all the information and explanations which to the best of his knowledge and belief were necessary for the purposes of his audit,

(b) in his opinion, proper books of account have been kept by the bank so far as appears from his examination of those books and proper returns adequate for the purposes of his audit have been received from any branches of the bank not visited by him,

(c) the balance sheet and income and expenditure account of the bank are in agreement with the books of account and records of the bank, and

(d) in his opinion and to the best of his information and according to the explanations given to him, the bank's balance sheet and income and expenditure account give the information required by this Act in the manner so required and give a true and fair view—

(i) in the case of the balance sheet, of the state of the bank's affairs as at the end of its financial year, and

(ii) in the case of the income and expenditure account, of the income and expenditure of the bank for its financial year.

(3) It shall be the duty of the auditor in preparing his report under this section in relation to a trustee savings bank to carry out such investigations as will enable him to form an opinion as to whether—

(a) the bank has kept proper books of account and records, and

(b) the bank has maintained a satisfactory system of control and supervision of its transactions and its books of account and other records,

and, where the auditor is of opinion that the bank has failed to keep proper books of account or records or to maintain a satisfactory system in relation to the matters specified in paragraph (b), he shall so state in his report.

(4) An auditor of a trustee savings bank shall have access at all reasonable times to the books, accounts, records and vouchers of the bank and to all other documents relating to its affairs and may require from, and in pursuance of such a requirement there shall be given by, the officers of the bank such information and explanations as he thinks necessary for the performance of his duties as auditor.

(5) Where a trustee savings bank has a subsidiary or holds shares in or is a member of a body corporate—

(a) in case the subsidiary or body is a body incorporated in the State, it is the duty of the subsidiary or body and its auditors to give to the bank's auditors such information and explanations and such access to documents as those auditors may reasonably require for the purposes of their duties as auditors of the society, and

(b) in any other case, it is the duty of the bank, if required by its auditors to do so, to take all such steps as are reasonably open to it to obtain from the subsidiary or body such information and such access as are mentioned in paragraph (a).

Duties of auditor of trustee savings bank.

38. —(1) If at any time an auditor of a trustee savings bank—

(a) has reason to believe that circumstances exist which are likely to affect materially the bank's ability to fulfil its obligations to its depositors or creditors or any other of its financial obligations,

(b) has reason to believe that there are material defects in the accounting records, systems of control of the business and records or of inspection and report thereon,

(c) has reason to believe that there are material inaccuracies in or omissions from any returns made by the bank to the Central Bank,

(d) proposes to qualify any report which he is to provide under this Act, or

(e) has reason to believe that there are material defects in the system for ensuring the safe custody of documents of title belonging to the bank and deeds relating to property mortgaged to the bank,

he shall forthwith report the matter to the Central Bank in writing.

(2) An auditor of a trustee savings bank shall, if so requested by the Central Bank, furnish to the Central Bank a report stating whether in his opinion and to the best of his knowledge the bank has or has not complied with such requirements under this Act as may be specified in the request.

(3) An auditor of a trustee savings bank shall send to it a copy of any report made by him to the Central Bank under subsection (1) or (2).

(4) (a) Whenever the Central Bank is of opinion that the exercise of its functions under this Act or the protection of the interests of depositors so requires, it may require the auditor of a trustee savings bank to furnish the Central Bank with such information as it may specify in relation to the audit of the business of the bank.

(b) The Central Bank may require that, in furnishing information for the purpose of this subsection, the auditor shall act independently of the bank.

(5) No duty to which an auditor of a trustee savings bank may be subject shall be regarded as contravened, and no liability to the bank, its creditors or other interested parties, shall attach to the auditor by reason of his compliance with any obligation imposed on him by or under this section.

Performance of functions and provision of services of trustee savings bank by subsidiaries and other companies.

39. —(1) Such functions of or services to be performed or provided by a trustee savings bank as it may, with the consent of the Minister and the Central Bank, determine may be performed or provided by a subsidiary of the bank or a company (referred to subsequently in this section as “a joint company”) in relation to which the bank and one or more other trustee savings banks would, if they were amalgamated, be the holding company and, accordingly, a trustee savings bank, or 2 or more trustee savings banks acting jointly, may, with the consent of the Minister and the Central Bank, for the purpose of such performance or provision, acquire or form and register one or more subsidiaries or, as may be appropriate, joint companies and the other provisions of this Act shall apply in relation to a subsidiary and a joint company of a trustee savings bank as they apply in relation to the bank with any necessary modifications.

(2) A trustee savings bank may, with the consent of the Minister and the Central Bank, dispose of shares in the business or part thereof, or an interest in the business or part of the business, of a subsidiary or joint company of the bank or acquire shares in, or the business or part of the business of, a company.

Retention by trustee savings bank of records, receipts and similar documents.

40. —(1) A trustee savings bank shall retain—

(a) its books and records and its receipts and similar documents, or

(b) copies thereof that are in a legible form or in a non-legible form that is capable of being reproduced in a permanent legible form,

for a period of at least 6 years.

(2) A person who contravenes subsection (1) shall be guilty of an offence.

Payments by trustee savings bank to persons not of full age.

41. —A deposit in a trustee savings bank of or for the benefit of a person who is not of full age and the interest thereon may be paid by the bank to the person and the receipt of the person shall be a sufficient discharge to the bank for the payment.

Closing and dissolution of trustee savings bank.

42. —(1) The trustees of a trustee savings bank shall not close or dissolve the bank or carry on the business of the bank for the purposes only of winding up its affairs unless—

(a) the Central Bank consents to the closure or dissolution, or

(b) the bank is ordered to be wound up under the Act of 1963.

(2) If the Central Bank consents to a proposal of the trustees to close or dissolve a trustee savings bank—

(a) the trustees shall give such notice of the proposal to depositors with the bank as the Central Bank may require, and

(b) provide such facilities as the Central Bank considers appropriate for the withdrawal of deposits from the bank.

(3) Upon the closure or dissolution of a trustee savings bank, the trustees shall, as soon as may be—

(a) convert into money any property or other assets of the bank, and

(b) if appropriate, transmit to the Minister—

(i) a list (certified to be correct by at least 2 of the trustees) of the names and addresses of any depositors with the bank who have not applied to the bank for repayment of their deposits and of the amounts due to them in respect of the deposits and interest on the deposits, and

(ii) an amount sufficient to discharge the amounts aforesaid,

and

(c) pay any surplus moneys remaining after the discharge of its liabilities and the payment of any expenses incurred by it that are authorised by its rules or by law to the Minister who shall dispose of them for the benefit of the Exchequer.

(4) (a) Subject to paragraph (b), a depositor referred to in subsection (3) shall, upon proof to the satisfaction of the Minister of his identity, be paid by the Minister an amount equal to—

(i) the amount of the deposit and any interest thereon accrued up to the date of the transmission of the relevant amount in respect of it to the Minister, and

(ii) an amount equal to the amount of interest that would be payable to the depositor in respect of interest thereon if he had deposited the amount referred to in subparagraph (i) in the Post Office Savings Bank for the period from the date aforesaid until the date of the making of the payment by the Minister.

(b) Where the amount paid to the Minister under subsection (3) (b) is less than the total of the amounts falling to be paid by him under paragraph (a), the Minister shall make such payments (not exceeding in total the amount so paid to him), under that paragraph to the depositors concerned as he considers reasonable in all the circumstances.

(5) A person who contravenes subsection (1), (2) or (3) of this section shall be guilty of an offence.

Restriction of certain exemptions from liability for officers of trustee savings bank.

43. —(1) Any provision contained in the rules of a trustee savings bank or in a contract made between a trustee savings bank and an officer or auditor of the bank exempting such officer or auditor from, or indemnifying him against, any liability which by virtue of any statute or rule of law would otherwise attach to him in respect of any negligence, default, breach of duty or breach of trust by him occuring after the commencement of this section in relation to the bank or his employment with the bank shall, subject to subsection (2), be void.

(2) A trustee savings bank may indemnify an officer or auditor of the bank against any liability incurred by him as a defendant in civil or criminal proceedings in any court in which judgment is given in his favour or in which he is acquitted, being proceedings in relation to the bank or his employment with the bank or in connection with any application under section 44 in which relief is granted to him.

Power of court to relieve liability of officers of trustee savings bank in certain cases.

44. —(1) If in any proceedings for negligence, default, breach of duty or breach of trust against an officer or auditor of a trustee savings bank in relation to or arising out of his employment with the bank, it appears to the court hearing the proceedings that the officer or auditor is or may be liable in respect of the negligence, default, breach of duty or breach of trust, but that he has acted honestly and reasonably and that, having regard to all the circumstances of the case (including those connected with his appointment), he ought fairly to be excused for the negligence, default, breach of duty or breach of trust, the court may relieve him, either wholly or partly, from his liability on such terms as it thinks fit.

(2) Where any such officer or auditor as aforesaid has reason to apprehend that any claim will or might be made against him in respect of any such negligence, default, breach of duty or breach of trust as aforesaid, he may apply to the Court for relief and the Court on any such application shall have the same power to relieve him as under this section it would have had if it had been a court before which proceedings against the person for negligence, default, breach of duty or breach of trust had been brought.

(3) Where any case to which subsection (1) applies is being tried by a judge with a jury, the judge, after hearing the evidence, may, if he is satisfied that the defendant ought in pursuance of that subsection to be relieved, either in whole or in part, from the liability sought to be enforced against him, withdraw the case in whole or in part from the jury and direct judgment to be entered for the defendant on such terms as to costs or otherwise as the judge may think proper.

Superannuation of staff of trustee savings bank.

45. —(1) A trustee savings bank may prepare one or more superannuation schemes.

(2) A superannuation scheme shall fix the time and conditions of retirement for all persons to or in respect of whom benefits are payable under the scheme and different times and conditions may be fixed in respect of different classes of persons.

(3) A trustee savings bank may prepare a scheme amending or revoking a superannuation scheme or a scheme under this subsection.

(4) (a) A scheme prepared under this section shall be submitted to the Central Bank.

(b) The Central Bank may approve of a scheme submitted to it under this section and, if it does so, it shall be carried out by the trustees of the trustee savings bank concerned in accordance with its terms.

(5) If any dispute arises as to the claim of any person to, or the amount of, any benefit payable in pursuance of a scheme or schemes, under this section, the dispute shall be submitted to the Central Bank whose decision thereon shall be final.

(6) Any expenses incurred by the trustees of a trustee savings bank in preparing and carrying out a scheme under this section shall be paid as part of the current expenses of the bank.

(7) A person who immediately before the commencement of a superannuation scheme was employed in a permanent, full-time capacity by a trustee savings bank may opt to become a member of the scheme and the terms and conditions of the scheme in relation to a person opting under this paragraph to become a member of it shall be not less favourable to him than those under any scheme or other arrangement providing superannuation benefits for or in relation to him immediately before such commencement and, if the person opts under this paragraph, the latter scheme or arrangement shall cease to apply in relation to him.

(8) In this section “a superannuation scheme”, in relation to a trustee savings bank, means a scheme for the granting of pensions, gratuities and other benefits payable in respect of past service with the bank or such other past service as may be specified in the scheme on resignation, retirement or death to or in respect of officers and other members of the staff of the bank employed by it in a permanent full-time capacity who are members of the scheme.