21 February 2013

Ghana: Amidu Strikes Woyome

The Supreme Court, yesterday, gave a seven-day ultimatum to businessman Alfred Agbesi Woyome to file his statement of case, in the case in which a former Attorney General, Mr. Martin Lamisi Amidu, is challenging him over the controversial GH¢52million judgment debt paid to him.

The court, presided over by Justice Date-Baah, further requested the Attorney General (AG) and Waterville Holdings (BVI) Limited, who are co-defendants in the case, to also file their statement of case within seven days.

The order of the court followed an application brought by the three defendants, requesting for an extension of time to enable them file their statement of case in the controversial judgment debt saga, which was subsequently granted.

The court, therefore, noted that the case would commence full trial of the issues after the defendants had filed their required processes before it.

Other members of the panel include Justices Julius Ansah, Sophia Adinyira, Rose Owusu, Jones Dotse, Anin-Yeboah, Paul Baffoe-Bonnie, Sule Gbadegbe and Vida Akoto Bamfo.

Meanwhile, it has come to the notice of the court that Austro-Invest Management Limited, a defendant in the case, is currently non-existent.

According to the plaintiff, Mr. Amidu, who was seeking to have the company, which was incorporated in Switzerland to be served the writ through substituted service to enable them file their case on the issue before the court. Austro- Invest Management Limited had been liquidated since July 26, 2012.

Mr. Amidu told the court that he was finding it difficult in serving Austro-Invest Management Limited, even though he used the address the company used, when its lawyers, Lithur, Brew and Co., filed a suit against Mr. Woyome before an Accra High Court, demanding an amount in the region of GH¢24 million from him, as its share of the judgment debt paid to the businessman.

The case at the High Court, instituted by Austro-Invest Management Limited against Mr. Woyome, has since been discontinued with liberty to re-apply.

The court, therefore, struck out Austro-Invest Management Limited from the writ, noting that it could not be dealing with a non-existent company, since it had liquidated itself in Switzerland.

Mr. Amidu is before the Supreme Court, taking steps towards helping the state retrieve the GH¢52 million, which he contended, was wrongfully paid to Mr. Woyome.

The reliefs Mr. Amidu is seeking include a declaration that the conduct of the then President Mills, implying in an interview with Radio Gold, a private radio station in Accra on 23rd December, 2011, that the two international business agreements of 26th April 2006, between the Republic of Ghana and Waterville Holdings (BVI) Limited, created liabilities for the country, for which Mr. Woyome should be paid a judgment debt, are inconsistent with and in contravention of Article 181 of the 1992 Constitution, and also undermines efforts to defend the Constitution.

The plaintiff was of the view that on a true and proper interpretation of Article 181(3), (4), (5), and (6), and the spirit of the 1992 Constitution, the Republic of Ghana could not incur liability for any foreign or international loan or expenses without Parliamentary approval of the transaction for it to be operative and binding on the country.

In his writ to invoke the original jurisdiction of the Supreme Court, as enshrined in the Constitution, Mr. Amidu explained that his action was purely based on public interest, pursuant to Articles 2 and 130 (1) and 181 of the 1992 Constitution, and not a personal action, for which the requirement of a "controversy" or "dispute" or "personal interest" is required to ground a cause of action.

He, therefore, requested the court to make a declaration that the manner in which the A-G paid sums of money in Euros to Waterville, in purported pursuance of claims arising out of the said two agreements each, dated 26th April 2006, was inconsistent with, and in contravention of the letter and spirit of the 1992 Constitution, "particularly Article 181(5) thereof, and is each accordingly null, void, and without effect whatsoever."

Mr. Amidu has rejected the A-G's decision to order the payment of claims demanded by Waterville and Austro-Invest, premised upon a purported foreign or international financial engineering agreement, arising out of the two agreements of 26th April 2006 and/or any other international business agreement with the Government of Ghana, which were never laid before, or approved by Parliament.

He also sought from the court an order directed at Mr. Woyome, Waterville and Austro-Invest to refund to the Republic of Ghana all sums of money paid to them severally or jointly, upon or as a result of the unconstitutional conduct of the A-G in purported pursuance of the two inoperative agreements of 26th April 2006, or "any other unconstitutional agreement as having been made and received by them in violation of Article 181 of the Constitution."

The former A-G also took on the High Court, which purportedly assumed jurisdiction in an action commenced by Mr. Woyome on 19th April 2010, in Suit No. RPC/152/10 against the state, claiming damages for breach of contract in an international business transaction, contrary to Article 181 of the 1992 Constitution, and entered judgment in default of defence against the A-G.

He further contended that in spite of the fact that Mr. Woyome and Austro-Invest did not have any locus standi or cause of action to have commenced an action in the High Court against the state, the then A-G (Madam Betty Mould Iddrisu), stood by, and the court also upon glaring facts, entered a default judgment against the Republic of Ghana in favour of the two (Mr. Woyome and Austro-Invest) without any jurisdiction whatsoever.

He pointed out that the court acted without jurisdiction, and was therefore, seeking a declaration that "those proceedings and others consequent thereupon of the said High Court are null, void, and without effect whatsoever."

He recalled that when almost all the foregoing matters came to his attention on 23rd December 2011, as the then the Attorney-General, he made every effort in his official capacity, including amending a pending suit at the High Court, to ensure compliance with the provisions of 181 of the Constitution, but could not achieve his objective before he vacated the office on 19th January 2012.

He argued that by virtue of the actions and conduct of Mr. Woyome, Waterville and other co-defendants, resources had been, and were being misappropriated and misapplied, without any constitutional authority whatsoever.

He was of the view that if the Supreme Court did not intervene to restore compliance with the provisions of the Constitution being sought, the defendants would continue to engage in their "unconstitutional conduct" of demanding and paying interests and other costs, and further cause the Republic of Ghana to make unauthorised loss of resources.

In a related development, the court adjourned to March 5, this year, a case in which Mr. Amidu has dragged ISOFOTON S.A of Montalban, Madrid, Spain, and two others before the Supreme Court seeking some Constitutional interpretations.

The other two defendants are the Attorney-General and Mr. Anane-Agyei Forson, a Ghanaian citizen and agent of Isofoton S. A.

The court's decision came on the heels of a controversy over who represents Mr. Anane-Agyei Forson, after Mr. Kizito Beyuo appeared in court to be his counsel, when it had been on record that Mr. Owusu Yeboah had represented both Isofoton and Mr. Forson.

The court, therefore, ordered both counsels to put their house in order, and file a change of solicitors in the case of Mr. Forson, and also indicate the right processes to adopt, adding that both Isofoton and its agent should, within seven days, file any other process in the case.

Meanwhile, the court granted a request by the A-G seeking for an extension of time to file its statement of case, and asked them to file the process within seven days, after which the case would take its normal course. The writ seeks nine declarations, including an interpretation of Article 181 of the Constitution.

He contented that: "On a true and proper construction of Article 181(3) and (4) of the Constitution, and Section 7 of the Loans Act, (Act 335), the laying before and approval on 1st August 2005 of the terms and conditions of the Second Financial Protocol between the Republic of Ghana and the Kingdom of Spain for an amount of sixty-five million Euro (€65,000,000) for the implementation of development projects and programmes in Ghana, did not nullify the effect of Article 181(5) of the 1992 Constitution that mandates further laying before, and approval of any specific international business or economic transaction to which the government is a party, even if payment had to be made from the said loan, approval by Parliament."

Mr. Amidu also challenged the conduct of the government in agreeing to pay, and making part payment for the alleged settlement of one million three hundred thousand United States dollars (US$1,300,000), and threatening to complete the unconstitutional payments.

He also raised the issue of the jurisdiction of the High Court to have entertained Isofoton S. A.'s Suits No. BC23/2008 AND BC24/2008 against the Republic of Ghana, on the grounds that Isofoton lacks locus standi and a cause of action to commence the action in the first place, due to the absence of any operative contract with the Government of Ghana.

Mr. Amidu further requested for declarations against the conduct of Isofoton S. A. and Mr. Anane-Agyei Forson for making claims against the Government of Ghana, when they knew that there was no operative contract with the Government of Ghana within the meaning of Article 181(5) of the 1992 Constitution, as well as other consequential orders and directions from the court to give effect to the reliefs sought.

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