I-CAN-GHANA

My friend Professor J. Atsu Amegashie said to me, on a listserve that we write on that:

“If parliamentary approval was not obtained [for those transactions in respect of which arbitral awards have been issued against Ghana], then those who failed to do so broke the law. In any well-governed country, it is these governments officials, not the contractors, who will bear the cost of breaking the law (fines, jail terms, etc). Straightforward and simple. But in Ghana, we like doing things in a convoluted manner. This perpetuates a system of perverse incentives.”

MY RESPONSE:

Atsu, maybe. BUT:

There is a problem with holding officials responsible for not obtaining parliamentary approval, and it is a VERY LONG story.

The ‘problem’ of article 181(5)
You see, article 181(5) didn’t say that “all international contracts to which the government is a party must be submitted to parliament for prior approval.” If it had, then there would be a case for sanction for officials who failed or refused to seek and obtain the approval.

But this is what 181(5) says:

“This article shall, with the necessary modifications by Parliament, apply to an international business or economic transaction to which the Government is a party as it applies to a loan.“

WHAT THE HECK DOES THAT MEAN? Now, the first sub-articles of article 181 basically state that the government cannot take or grant loans without parliamentary approval, and then lays down a procedure for obtaining the approval for giving a loan and a different procedure for granting a loan.

Thus, the questions after 1992 were: what was the exact meaning of “shall, with the necessary modifications by Parliament, apply…”? Does it mean that parliament is given the power to amend the constitution by making mutatis mutandis “modifications”? And, does the article apply at all, if parliament has failed to make the “necessary modifications”? Are those “modifications” conditions precedent to the application of the article? And how far can the “modifications” go? Can parliament, for example, say that some agreements do not require its approval at all? Would that be a modification? Indeed can parliament “modify” this article to say that its approval isn’t required at all?

Other questions: What is the meaning of “international?” What is a “business… transaction”, and what is an “economic transaction”? What is a “transaction”? Is it synonymous with a contract or agreement or does it involve more. Is a contract a series of transactions or vice versa? What is the meaning of “Government” and when is the government a party to a transaction? etc. etc.

I remember at least one seminar organised by the IEA to try to understand this provision. And I have read a couple of papers where some academic suggested that we should remove article 181(5) from the constitution. Note that this provision did not appear in any of our previous constitutions and so we didn’t have the benefit of any previous application if it or guidelines for it. What is worse, the 1992 Constitutional Experts Commission itself said very little about this new provision to shed any light on how it is to be interpreted. We were left groping in the dark.

The result was that both the Executive and Legislature simply ignored article 181(5). Yes, some Mining Agreements and Petroleum Agreements were sent to parliament, but those were because of specific constitutional and statutory provisions to that effect. But generally no one bothered with contracts. Yes, loans went to Parliament under the 1970 Loans Act, but Parliament itself only has a terse provision on international contracts in its new Standing Orders, which provided no guidance on the matter at all.

[CAVEAT: At this point, let me make a personal disclosure: I acted for Balkan and Bankswitch and I am still acting for them. I was also the lawyer for one of the Defendants in the Klomega Case. I ‘lost’ Balkan in the SC – and you will see why I use ‘lost’ very soon. Apaak’s case against Bankswitch is still pending in the SC. AND SO ANY AND EVERY ONE IS ALLOWED TO TAKE WHAT I AM WRITING WITH THE APPROPRIATE DOSE OF SALT]

Faroe Atlantic
Finally in 2005 (13 years after article 181(5) was enacted), the SC had the opportunity to interpret it in the Faroe Atlantic Case. After all the song and dance, the SC held, in substance that:

1. article 181(5) meant that parliamentary approval was required for international business and economic transactions that the government is party to; and without it, the transaction is void, and

2. The transaction in question was “international” because the other party to the transaction was a foreign company.

THIS is where the decision ended. There was no attempt to answer any of the other questions that I had raised above.

Balkan
It was based on the Faroe Atlantic decision that AG Joe Ghartey issued his opinions in Balkan. Indeed he cited Faroe Atlantic in one opinion, stating that once the contractor in the Balkan PPA was a company incorporated in Ghana, then on the strength of Faroe Atlantic, the contract was not international. It is on the basis of this opinion that the government at the time decided not to take the Balkan PPA to parliament for approval, and so Ghartey wrote a second opinion to the effect that all necessary and required approvals for the PPA had been obtained.

When the change in government occurred, the new government dealt with Balkan until Balkan alleged a breach. Government triggered the arbitration clause in the PPA and asked Balkan to go for arbitration. Balkan filed the notice of arbitration. (Days later, its American manager of the Barge was arrested at Effasu for allegedly stealing parts on the barge and detained, in the words of the arbitral tribunal “in his underwear” at BNI in Accra – note: the arbitral tribunal ordered Ghana to pay damages of $50,000 for that arrest!!). Ghana participated in the preliminary ADR (mediation, I think) at The Hague, and then returned to Ghana to file an action in the High Court stating that the arbitral proceedings were wrong, and making allegations against Balkan. Indeed a High Court judge issued an ex parte injunction restraining Balkan from proceeding with the international arbitration that had already commenced! (Some of our judges forget that their orders are limited to the 4 corners of our physical boundaries.)

Our attempts to stay proceedings in Ghana for the arbitration to continue failed. The government then applied to the court to say that the case raised constitutional questions and so the High Court should refer the matter of interpretation to the SC. At the same time the government applied to the arbitral tribunal for an interim award to challenge the jurisdiction of the arbitral tribunal. It failed in both applications. The arbitral tribunal asserted its jurisdiction and the HC in Accra (differently constituted) refused its referral application, on the ground that article 181(5) had already been interpreted in Faroe Atlantic and so all the HC had to do was to apply that interpretation.

Of course there was no further recourse with respect to the arbitral tribunals interim award against Ghana, But dissatisfied with the HC ruling, Ghana then applied for a judicial review of the HC ruling, in the SC. It was successful and the SC ruled that the Balkan matter raised issues that it didn’t address in Faroe Atlantic and so there was a case for interpretation. When the substantive case for interpretation came up, the SC made the following interesting decisions:

1. The word “international” did not only apply where the other party is foreign. One should look at the substance of the agreements themselves so that even if the other party is a Ghanaian, where the contract contains terms that are usually found in international contracts, that contract was “international” and would require parliamentary approval.

2. Parliament should get its act together and pass the Act required under article 181(5). Until Parliament passes the Act, a certification by the AG (although it wouldn’t be binding on the SC), should be sought.

3. A new word, the qualifier “major,” should be read into article 181(5) so that it would only apply to “major international… transactions”, else Parliament would be saddled with approving all kinds of minor transactions. [I had argued that the President required parliamentary approval to buy a British Airways ticket to travel, and that every single purchase of a vehicle by government would also require parliamentary approval since we don’t manufacture any cars in Ghana. Yes, in response, the SC rewrote the constitution!!]

4. That an arbitration agreement is not an “economic or business transaction” and that parliamentary approval was not required for it. But in a rather shocking paragraph, the SC seemed to argue against the principle of separability, which holds that an arbitration clause in an agreement is treated as a distinct and separate agreement from the ‘mother’ agreement. What was worse, this ‘hallowed’ principle had only just been enacted in Ghana in the 2010 ADR Act (Act 798), but the SC appeared to argue against it. Yet the simply raised a question, did not answer it, but held that the arbitration agreement did not require parliamentary approval since it didn’t amount to a transaction anyway. [THAT is why I said ‘lost’ because that was all I needed to go back to the arbitration].

6. The court DID NOT declare the Balkan PPA void. It directed the parties to return to the HC for the continuation of the trial, on the bases of the decisions/interpretations that the SC had done.

However both Ghana and Balkan ignored the HC and went straight back to international arbitration. We now know the result – Ghana has to pay $12m.

Bankswitch
Note that the Balkan and Bankswitch arbitrations were going on at the same time. As soon as the SC decision in Balkan was delivered, Ghana, which had largely not really participated in the Bankswitch arbitration, suddenly woke up and filed its main defence (raised only after submissions had virtually been completed): that there was no parliamentary approval of the Bankswitch contract, and that on the basis of the SC decision in Balkan, the contract was void. But Ghana seemed not to know or had forgotten that AG Betty Mould-Iddrisu, just like AG Ghartey before her, had issued an opinion that it was a valid contract. Both AG Ghartey and AG Mould-Iddrisu issued their respective opinion with full knowledge of the decision in Faroe Atlantic. Thus in both Balkan and Bankswitch awards, Ghana was clobbered with the AG opinions as to the validity of the contracts, even though there was no parliamentary approval. We know the result in Bankswitch – Ghana has to pay almost $80m.

Klomega
In Klomega, the Plaintiff’s case was that article 181(5) applied to GPHA, and so the contracts signed with Meridian to manage the ports, were void. Note, Klomega’s lawyer when he sued, is the current Deputy AG. Although he didn’t appear again after his appointment, his firm continued with the case. We were successful in convincing the SC that the term “government” in article 181(5) did not apply to statutory corporations such as GPHA. But even with that the court held that if the government is seen to be using such corporations as a facade to enter into contracts and to avoid parliamentary approval (in what the court described as a local application of the alter ego principle), then the SC would hold the contracts void without parliamentary approval. But the other interesting part of Klomega was that the government filed two contradicting submissions: one supporting Klomega (filed by Martin Amidu before he was fired) and another against Klomega (filed by Marietta Brew when she was appointed AG). Ei, things dey happen for this our Ghana oo!!

Waterville and Isofoton
I guess these two ‘Martin Amidu’ cases are sufficiently well known, as a further application of the SC decision in Balkan. But note that in Isofoton, the rather activist SC issued a straight warning to the government that it was monitoring developments in the Chinese $3b loan matter, and that even though parliamentary approval had been obtained for the loan, all subsequent transactions involving Chinese entities would require parliamentary approval.

Government’s Quandry
Yes, it was government that went to the SC for the Balkan decision. The government supported Klomega and later withdrew its support for his case. One isn’t too clear on what the government’s stance was in Waterville and Isofoton. But the net effect of all these decisions is that international business is wary of Ghana. Now they demand parliamentary approval for every whiff of a contract, or no deal. Some are demanding ‘political risk insurance’ with very high premiums to protect themselves from our “coup mentality” when every change of government comes with attacks on contracts entered into by the previous government.

I can say that many major transactions have been stalled on that account. EXACTLY what is Ghana’s position on article 181(5)? We have blown hot, cold and lukewarm at the same time. We have spoken with a forked tongue and from both sides of our mouths. Some contracts, especially PPAs, that existed before the decisions have been quietly sent to parliament for belated approval. I laugh, because the approval required, according to the SC is supposed to be “prior” to the contracts. But here we have “ex post facto” approvals of existing contracts. Indeed, in one instance, the original agreement wasn’t sent to parliament – what parliament approved was the amendment!! Apparently parliamentary approval can now raise the dead. We are in Easter!

And so right now, questions are being asked whether the Gas deals require parliamentary approval. Yes, the deal is between GNPC (or was it the Ghana Gas Company?) and the Chinese. But the question now is that since the money utilised for the Gas project was from the loan that the government had obtained (remember the SC’s warning in Isofoton?), isn’t the government caught by the Klomega alter ego principle, so that the entire transaction would be void? MATTER DEY COME!!

So the AG has a problem. So what have they done? The AG and Finance Minister have gone back to parliament with proposals for the urgent enactment of the article 181(5) “necessary modifications” Act, so that there would be a blanket approval of previous deals, and deals like Ghana Gas, and that all deals flowing from previously approved loans and transactions would not require approval. In short, Ghana is asking parliament to allow it to roll back the effect of the decisions in Balkan (which Ghana took to court), water down the warning in Isofoton, and to kinda neutralise the alter ego part of the decision in Klomega!!

Parliament set up a committee to work on the matter. I am aware of only one meeting where they criticised themselves for not acting on article 181(5). Has the committee been meeting? I don’t know. I suspect it has promptly gone to sleep because I received an informal, verbal ‘invitation’ to appear. No formal letter received, and somehow, parliament is simply not dealing with this issue. Maybe, as Bagbin suggests, they committee needs some “T&T” to facilitate its work.

So, can we really hold government officials responsible for not obtaining parliamentary approval? I dunno, really, I dunno.

a.

PS. I beg it is still dawn and I have been typing for a little over an hour, Pardon my typos.

BRAINS DEVELOP A NATION, NOT RESOURCES

Speech delivered by Ace Anan Ankomah, Guest Speaker, University of Ghana Congregation, Great Hall, Saturday 9 November 2013

Mr Chairman, Professor Vice-Chancellor, Professors Pro-Vice-Chancellors, esteemed members of the University community, graduands, ladies and gentlemen,

26 years ago, as an incoming student, I was going through registration, right in this Great Hall. As we waited in line, I struck a conversation with one Lawrence Mefful (who later became a Major in the Ghana Army, and a lawyer, and unfortunately died in combat working for the United Nations in Afghanistan not too long ago).

Lawrence had been my senior in Mfantsipim, and was working as one of the registration assistants here. As we chatted, he offered a piece of unsolicited, yet life-changing advice that struck a chord, and stuck, with me throughout my stay here. He said: “don’t just go through the school; let the school go through you.”

In Legon, you have had positive and negative experiences. You have also had experiences that fall somewhere between positive and negative. These, and how you dealt with them, will have an impact on what you do in life, from here. One of my favourite writers, who goes by the simple name of Paul, wrote, many years ago about how ALL things must work together for your good. This revelational writing finds its way into the Bible, and the key point is not that all things are good. He says that the good, bad and in-between things, ALL THINGS, must work together to produce good.

Ladies and gentlemen, the way you dealt with that difficult roommate here, will tell on how you deal with that difficult co-worker at your office when you leave here. The lecturer who did not like you, was probably just preparing you for the boss who will give you a tough time on your first job. In what way has Legon prepared you to deal with those situations? If all you take from here is a degree, then I suggest to you that you have short-changed yourself. The big question is whether the school has gone through you, or you have merely gone through the school?

Before I got to Legon, I was fascinated by sayings and mantras. I still am. My best, before I got here was “failure has no breeding grounds where discipline and dedication lie.” That is still true. But discipline towards what? And dedication to what? This is what brings me to my main theme today, which I heard just a couple of days ago from my friend and classmate in Legon, Professor Francis Botchway, now Professor of Law at Qatar University: “BRAINS DEVELOP A NATION, NOT RESOURCES.” And to that, I add something else that I have heard: “RESOURCES ARE NOT…, THEY BECOME…”

One of my most favourite comparisons of countries is between Ghana and Switzerland. I am certain that Switzerland earns more money from chocolate and cocoa products that we earn from selling cocoa. I am also certain that the closest cocoa tree to Geneva is in the Ashanti Region of Ghana, as the crow files. We got the resource, they got the….. [you said it, not me]. The manufacturer in Ghana of easily the most favourite chocolate drink in Ghana, Milo, is a company called Nestlè. Guess what? Nestlè is a Swiss company. We got the resource, they got the… [you said it again!]

I am always reminded of an African proverb, which says that “a man/woman has to hold his/her mouth open for a VERY LONG time before a roasted guinea fowl flies into it.” Often, that is our problem. Life is not waiting for us. “The future started yesterday, and we are already late,” sings John Legend, the musician.

Alvin Toffler writes that “the illiterates of the 21st Century will not be those who cannot read and write, but those who cannot LEARN, UNLEARN AND RE-LEARN.” That is what this institution is supposed to turn you into: not just a degree holder, but a person with the ability to learn, unlearn and learn again. It is all about the mind. That is why the late Robert Nesta Marley (more popularly known as “Bob Marley”) famously sang that “none but ourselves can free our own minds.”

You are what you think you are. If you think that you are a grasshopper, you are a … [now you are giving my speech.] But if you think that you are an achiever and a giant, that is exactly what you are. It is said in the Good Book, again, that “as a man thinks in his heart, so is he.” It is that thinking, the developed brain, that will develop this nation. “Resources are not…, they become…”

I am of the firm belief that the solutions to Ghana’s problems are in Ghana. Many of them are hiding right here in the various faculties and archives of our universities. Why do I say that? Every year, literally hundreds of students engage in supervised project work, theses and dissertations, all of which identify and actually solve, at least on paper, many of the problems that confront us. Loads of research have been conducted in, for instance, our Bio-Chemistry and Engineering faculties. These should feed industry; but there are no linkages. We have to start digging out those archives and bringing to life, for us to learn, unlearn and relearn that vast wealth of solutions that are presently in hiding. It is the mind that develops a nation, not resources.

Paul, my favourite writer also boasts about “one thing” that he does, which he particularises into three – yes, three, wrapped in one. He says that (i) he “forgets the things that he has achieved,” (ii) he “reaches forth towards the things that are ahead”, and (iii) he “presses forward.” Yes, those three constitute just one thing – LIFE. You build on what you have experienced as a basis for aiming, and then moving forward. Your university degree is the foundation. Today, you must be in that “forget” state, and start reaching towards new things, and then pressing towards them. Look, life is not impacted by those who have merely touched or tickled it. Achievers PRESS and PUSH towards the mark.

Ladies and gentlemen, I do not believe in coincidences and so I particularly identify with this graduating class. This is because a few years ago, I was the Chairman of a scholarship scheme run by an organisation called Changing Lives Endowment Fund, which offers scholarships to help some students through second-cycle and tertiary education. It is significant that two of our very first beneficiaries have graduated today as part of your class, and I would want to take this opportunity to salute Miss Paula Duah and Miss Rejoice Okai.

Ladies and gentlemen of the 2013 graduating class, I salute you and welcome you to life. There is no end to this journey. We have to break bounds and expand territories. That journey begins and continues in the mind. The journey is the destination. But you must always remember, that there is a God who rules in the affairs of men, and who says, through the same Paul, that “it is not of him who wills, or of whom who runs, but The Lord who shows mercy.” Yes, be geared to the times, but don’t forget to be anchored to that Rock.

You are who Ghana has been waiting for. We have been waiting, for a long time, for your brains arrive and develop this country. Do not disappoint us. I welcome you to life with another of my mantras:

When others sit, you must stand.
When others stand, you must stand out.
When others stand out, you must be outstanding.
And, when they become outstanding, you must become the standard.

May God bless you and us all.

IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA
AD 2013

BETWEEN

MARTIN ALAMISI AMIDU

AND

THE ATTORNEY-GENERAL
WATERVILLE HOLDINGS (BVI) LIMITED
ALFRED AGBESI WOYOME

WRIT NO . J1/15/2012
14 JUNE 2012

CORAM: DR. DATE-BAH JSC (PRESIDING), ANSAH, ADINYIRA, OWUSU, DOTSE, ANIN YEBOAH, BAFFOE-BONNIE, GBADEGBE & AKOTO-BAMFO JJSC.

DR DATE-BAH JSC: JUDGMENT
The facts

To the joy of the many lovers of soccer in Ghana, Ghana won, in July 2004, the right to host the 2008 African Cup of Nations football tournament, popularly known as CAN 2008. This case is about one of the consequences of Ghana’s successful bid to host CAN 2008. As a result of winning the right to host CAN 2008, the Government of Ghana became obliged to rehabilitate football stadia and other sporting facilities in Ghana. In order to fulfil this obligation, it set in motion in January 2005 a procurement process for the award of appropriate contracts in accordance with the Public Procurement Act, 2003 (Act 663).
Vamed Engineering Gmbh & CO KG (referred to subsequently as ‘Vamed’) was one of the companies which submitted a tender for the award of a contract to rehabilitate the stadia specified by the Government of Ghana. Vamed became one of two companies which were shortlisted by the Government’s evaluation committee. Meanwhile, by a letter dated 1st July 2005, Vamed purported to assign all its rights and obligations in the CAN 2008 stadia tender and another specified project to the second defendant. The second defendant, by an undated letter from Andrea Orlandi, a director of the company, to Vamed accepted this purported assignment.

The relevant Entity Tender Committee recommended Vamed/Waterville to the Central Tender Review Board for the award of the contract because its tender was in their view the most competitive. The Central Tender Review Board on 5th August 2005 gave “concurrent approval for the award of the contract to Messrs VAMED Engineering.” However, by a letter dated 22nd August 2005 addressed to the Managing-Director of Vamed, the Minister for Education, Youth and Sports purported to terminate the procurement process “due to the high commitments implied in the submissions, the inconclusive and the non-assuring nature of the financial submissions”. The second defendant made several protests to Government in respect of this purported abrogation. It entered into negotiation with Government regarding the purported abrogation which resulted in a Memorandum of Understanding between them on 30th November 2005. The MOU stated that the Government would award the Ohene Djan and El Wak stadia project on a turnkey basis to the second defendant.

On 26th April, 2006 the Government of Ghana signed two separate but similar agreements with the second defendant for the rehabilitation of the Ohene Djan and El Wak stadia in Accra and the Baba Yara stadium in Kumasi, respectively. These two agreements both expressly specified conditions precedent to their coming into force. Clause 17 of the agreements stated as follows:

“17.1 This contract shall become effective at the date of the fulfilment of all of the following conditions:
17.1.1 Signing of the Contract by all Parties
Signing of the Loan Agreement relating to the Contract by the Minister for Finance and Economic Planning.
Rendering of a Legal Opinion by the Ministry of Finance and Approval of the Contract by the Cabinet and Parliament of the Republic of Ghana.
17.1.2 Confirmation by the bank holding the Escrow Account to the Contractor that the Escrow Account is established and credited with the total amount of the Contract Price according to Clause 5.
17.1.3 Effectiveness of the tripartite agreement to be concluded as per Clause 6.
17.1.4 Receipt by the Contractor of the advance payment referred to in Clause 6.1.
17.1.5 Receipt of the necessary approvals from Multilateral Investment Guarantee Agency (MIGA), Ex-Im Bank, USA and the Lender.”

In spite of the fact that the agreements were thus not yet in force, the Government, on 6th February 2006, even before the formal signing of the agreements on 26th April, 2006, authorised the second defendant’s access to the sites of the stadia. The Deputy Minister of Education and Sports, by a letter dated 6th February 2006, informed the Managing-Director of Waterville, that is, the 2nd Defendant, that his Minister had “no objection to your moving to the construction sites to commence evacuation and demolition exercises for the rehabilitation and upgrading of the Accra, Kumasi and El-Wak stadia. By this notice, we are informing the authorities of the stadia and El-Wak to grant access to the construction teams for the agreed initial exercise.” Thus, the second defendant commenced works involving the demolition of structures and the excavation and clearing of the sites. Subsequently, on 1st August 2006, the Government terminated the agreements with the second defendant, by a letter of that date written by the Attorney-General. That letter referred to clause 17 of the Agreements (quoted above) and indicated that the second defendant was being given notice that “since the contracts did not receive approval from Cabinet in accordance with Clause 17 of the Contracts, the Contracts have never become effective.”

By this letter, the Government of Ghana in effect walked away from the two agreements it had signed. It then entered into negotiations with the sub-contractors of the 2nd defendant, Micheletti and Co Ltd and Consar Ltd, to continue with the rehabilitation and refurbishment of the Ohene Djan, Baba Yara and El Wak stadia. The agreement reached with them was that Government would pay the sub-contractors the value of the work already executed by the 2nd defendant before the date of takeover by the sub–contractors of the work. The sub-contractors would then pay the 2nd defendant the value of the work it had undertaken. In his Statement of Case, the 1st defendant states as follows on this matter (in para 27):

“As a result GoG instructed the Consultants for the Project, Building Industry Consultants Ltd. (BIC) to value the work done by the 2nd Defendant from the time of entry onto the date of the takeover by the sub-contractors. It was agreed that GoG will remit to the sub-contractors all the entitlements due the 2nd Defendant as certified by BIC for collection by the 2nd Defendant.”

The value of the work previously undertaken by the 2nd defendant was thus duly certified by the consultants for the project, Building Industry Consultants Ltd (hereafter referred to as “BIC”). The Government of Ghana subsequently paid for all the work certified by BIC, totalling some Euro22,365,624.40. This payment was problematic since it appears to have used a restitutionary route to bypass the legal consequences of an inchoate international business transaction to which the Government was a party, which had not yet been approved by Parliament in terms of article 181(5).

In spite of this, on 9th March, 2009, the 2nd defendant wrote relying on a clause in the 26th April 2006 contracts to claim fees and pre-financing costs for the initial construction works from the Government, instead of from their subcontractors, as agreed. The 1st defendant therefore embarked on discussions with the 2nd defendant on its claim. On 18th August 2009, the 3rd defendant wrote to the Government, asserting that the 2nd defendant’s claim was grossly exaggerated and giving his opinion as to what was due from Government to the 2nd defendant. This letter is reproduced below because of its instructive contents. The letter is attached as Exh AG16 to the 1st defendant’s Statement of Case.

Stanley-Marbell Plaza
Behind Hotel President
Adabraka
P.M.B.100, G.P.O

18/08/2009
The Hon. Minster
Ministry of Youth and Sports
Accra

CLAIM: CAN2008 STADIA CONSTRUCTION

It has come to my attention that the company Waterville BVI has taken the Government of Ghana to court for the payment of an aggregate sum of Euro 33 million and the Attorney General Department has withdrawn the case for settlement.

M-Powapak Ltd, Austro Invest Ltd. and Myself are interested parties and wish to state that the demand by Waterville BVI is grossly exaggerated.

I was the one who engineered the whole CAN 2008 concept, pursued it through with three (3) consecutive Ministers of the Sport Ministry/Department over the period.

I engineered the finances, which covered the construction of Stadia Hospitals, and Youth and Skills Training Centres to be built countrywide.

The Government at that time decided that the whole process should not be Supply Contract but should go into tender; and the consortium won the bid through painful processes. We subsequently had a concurrent approval from the National Procurement Authority.

Waterville BVI was leading the Consortium that won the contract and demolished part of the Accra Sports Stadium upon a written instruction to Waterville BVI from the then Minister of Education and Sports.

The Government later abruptly cancelled the bid illegally through a cabinet decision citing high cost which decision I challenged, by writing to all stakeholders including the National Procurement Authority.

Waterville BVI through my help then formed Micheletti Company Ltd. to handle the construction of the Accra Sports Stadium.

All along, the Government of Ghana’s Consultants to the project was Building Industries Consultant (BIC).

Waterville BVI received some compensation from Micheletti and Co. and from Consar Ltd. (the main contractor for the Kumasi stadium). Austro Invest also received some form of compensation from Waterville BVI.

The claim by Waterville BVI should have been a joint claim by M-Powapak, Alfred Woyome, and Austro Invest. The quantum of Waterville BVI demand is far above what should have been the legitimate claim.

M-Powapak, Austro Invest, Alexandra Van-Cleef (Austro Invest Representative in the United States) and Alfred Woyome legitimate claim under this circumstance is Euro 6 million while Waterville claim should have been about Euro 5 million without interest, charges and damages.

It turned out that the Chinese who built the Essipong and Tamale Stadia were able to do so by using more than twice the approved bid price. They also used local commercial loans instead of the arranged soft loan from Bank Austria with the approval of the Paris Club, the World Bank, Multilateral Guarantee Agency of Washington DC, and the IMF, an arrangement I facilitated.

In conclusion, I ask that the negotiation between the Attorney General Department and Waterville BVI is ceased while I put forward the chronological evidence, carefully documented for your information and necessary action.

I use this opportunity to formally demand on my own behalf and on behalf of Austro Invest, M-Powapak, and Alexandra Van Cleef; the sum of Euro 6 million in lieu of the CAN 2008 stadia construction bid that was cancelled by the cabinet of the Government of Ghana illegally when it was clear that my consortium has won and has started actual construction of some of the project and also fully in the middle of full mobilization to move to other sites.

Alfred Agbesi Woyome

Cc: Secretary to the President
Attorney General and Minister of Justice
Minister of Finance and Economic Planning”.

From this letter, it emerges that the 3rd defendant had become a claimant against the Government of Ghana, although he was not a party to any of the agreements already mentioned in this account of the facts of this case. The legal basis, if any, for this claim is relevant to the jurisdiction of this Court in this matter, as will be explained below.
The solicitor of the 2nd defendant, Tetteh & Co, contradicted the 3rd defendant’s claim by a letter dated 20th November 2009, attached to the 1st defendant’s Statement of Case as Exh AG17. The text of that letter is also instructive and deserves to be reproduced. The letter addressed to the Honourable Attorney-General states as follows:

“Dear Madam

SETTLEMENT OF CLAIMS OF WATERVILLE HOLDINGS (BVI) FOR REHABILITATION OF OHENE DJAN, EL WAK AND BABA YARA STADIA

We write in response to your letter drawing attention to the claim of Mr. Woyome of M-Powapak (“Powapak”) dated 28th August 2009, against the claims of Waterville Holdings BVI (“Waterville”) being discussed for settlement.

Waterville did engage M-Powapak to provide Waterville with financial engineering services but the relationship was terminated by a Termination Agreement dated 25th November 2006, (“the Agreement”). Powapak’s claims against Waterville were fully settled and acknowledged in the Agreement. Therefore neither Powapak nor Woyome has any claim against Waterville. A copy of the settlement agreement with Powapak is annexed.

We must add that the stadia contracts were contracted between Waterville and the Government of Ghana (“GoG”); neither Powapak nor Woyome was a party. It is therefore wrongful for Mr. Woyome or Powapak to make a claim in a contract of which neither is a party.

Mr. Woyome’s allegation that Waterville’s claim is illegitimate clearly betrays his limited knowledge and involvement in the construction works, and importantly, his motive to discredit the legitimate claim of Waterville to payment of pre-financed works. It is on record that work done by Waterville was certified by the Consultant. The certificates were issued pursuant to settlement negotiations initiated at the Castle, Osu a couple of years ago, and Waterville has been pressing its claims on GoG ever since. Mr. Woyome’s emergence in the matter is belated and with no locus standi. The purported discredit of Waterville’s claim betrays a motive to settle scores for matters unconcerned withthe current  negotiation.

Please find enclosed our response to Mr. Woyome’s claim.”

When the 3rd defendant’s claim against the Government was not satisfied, he commenced an action against the Republic on 19th April 2010 intituled Alfred Agbesi Woyome v Attorney-General & Anor (Suit No. RPC/152/10) in the High Court (Commercial Division), Accra. The original writ was twice amended. The endorsement on its final form, filed on 6th May 2010, was in the following terms:

“ An order for payment of the sum of E44,259,009.48 or its cedi equivalent at the current forex bureau exchange rate representing cost of services rendered by Plaintiff for the Government of Ghana for procurement of facility in the sum of E1,106,470,587.00 for the construction of sports stadia, medical facilities, irradiation plant and tissue culture facilities between 2001 and 2006.

An order for payment of the sum of E11,600,289.44 being accrued interest on the sum of E44,259,009 from September 2006 up to April , 2010, at the rate of Eurobor 1 year plus three points.

Interest on the sum of E44,259,009.48 or its cedi equivalent at the current forex bureau at the rate Eurobor 1 year plus three points from May 1, 2010, up to and inclusive of date of final payment.

Costs, including Lawyers’ fees.”

Whilst negotiating with representatives of the Republic, the 3rd defendant obtained judgment in default of defence against the 1st defendant on this writ. Negotiations continued between the 1st defendant and the 3rd defendant which resulted in Terms of Settlement which were filed with the High Court on 4th June 2010. The Terms of Settlement were as follows:

“WHEREAS:

By a writ of summons and statement of claim filed at the Registry of the High Court, Commercial Division, Accra, on 19th April, 2010, the Plaintiff sought against the Defendants the following reliefs:

An order for the immediate payment of the sum of E41,811,480.59 being financial engineering cost owed Plaintiff by the Government of Ghana.

An order for payment of interest on the said sum from September 2006 till date of final payment.

General damages for inconvenience suffered by Plaintiff as a result of the long delay in paying him his fees.

Costs including solicitor’s fees and filing fees.

By amended writ of summons filed on 4th and 6th May, 2010, the Plaintiff claimed against the Defendants as follows:

An order for the payment of the sum of E44,259,009.48 or its cedi equivalent at the exchange rate representing cost of services rendered by Plaintiff for the Government of Ghana for procurement of facility in the sum of E106,470,587.00 for the construction of sports stadia facility, irradiation plant and tissue culture facilities between 2001 and 2006.

An order for payment of the sum of E11,600,289.44 being accrued interest on the sum of E44,259,009.48 from September 2006 up to April 2010 at the rate of Eurobor 1 year plus three points from May 2010 up to and inclusive of date of final payment.

Interest on the sum of E44,259,009.48 or its cedi equivalent at the current forex bureau at the Eurobor 1 year plus three points from May 2010 up and inclusive of date of final payment.

Costs, including lawyers fees.

On 24th May, 2010, the High Court, Commercial Division, presided over by His Lordship Justice Tanko Amadu, entered final judgment against the Defendant for a total sum of GHc105,565,548.24. The details of the judgment are as follows:

Judgement Debt E44,259,009.48 converted at GHc1.8894 to E1.00 – GHc83,622,961.38
Interest at the rate of Eurobor 1 year plus three points from September 2006 to April 2010 E11,600,289.44 converted at GHc1.8894 to E1.00 – GHc21,917,586.86

Costs – GHc25,000.00

Total judgement debt inclusive of interest and costs– GHc105,565,548.24

Following negotiations of the judgment debt by the parties, the parties have agreed as follows:

The Defendant shall pay to the Plaintiff the sum of GHc 51,283,480.59 representing the negotiated judgment debt as follows:

Judgment debt – 41,811,480.59

Interest – 9,447,000.00

Costs – 25,000.00

The Defendant shall pay to the Plaintiff the sum of GHc51,283,480.59 by three (3) equal monthly instalments in the sum of GHc17,094,493.53 beginning June, 2010 and ending August 31, 2010 in full and final settlement of the judgment debt.

The terms of settlement shall be entered as Consent Judgment subject to the usual default clause.

DATED AT PEASAH-BOADU & CO, 3RD FLOOR, GULF HOUSE, AIRPORT WEST, ACCRA THIS 3RD DAY OF JUNE, 2010.”

These terms of settlement were signed by both parties to the action in the presence of their counsel.

Subsequently, 1st defendant filed an application in the High Court to set aside these terms of settlement. The application was dismissed and the Court in the same ruling, in the view of the 1st defendant, “in an unprecedented ‘indecent’ haste” adopted the terms of settlement as a Consent Judgment, on the 9th of June, 2010.

The 1st defendant subsequently, on 28th July 2010, issued a writ seeking to set aside the consent judgment on the ground, inter alia, that it was procured by a mistake due to fraudulent misrepresentation by the 3rd defendant. The proceedings began by this writ are still in process.

Against the backdrop of the facts set out above, the Plaintiff has sued the defendants in this action invoking the original jurisdiction of this Court. The Plaintiff is a former Attorney-General who has declared that he seeks the public interest through this suit. His writ, originally issued on 22nd June 2012, was amended pursuant to an order of this Court made on 11th April 2013. It seeks the following reliefs:

“A declaration that the Agreement entitled “Contract for the Rehabilitation (Design, Construction, Fixtures, Fittings and Equipment) of a 40,000 seating Capacity Baba Yara Sports Stadium in Kumasi, Ghana” entered into on 26th April 2006 between the Republic of Ghana and Waterville Holdings (BVI) Limited of P. O. Box 3444 Road Town Tortola, British Virgin Islands is an international business or economic transaction under Article 181 (5) of the 1992 Constitution that could only have become operative and binding on the Government of Ghana after being laid before and approved by Parliament.

A declaration that the Agreement entitled “Contract for the Rehabilitation (Design, Construction, Fixtures, Fittings and Equipment) of a 40,000 Seating Capacity Ohene Djan Sports Stadium and the Upgrading of the El Wak Stadium in Accra, Ghana” entered into on 26th April 2006 between the Republic of Ghana and Waterville Holdings (BVI) Limited of P. O. Box 3444 Road Town, Tortola, British Virgin Islands is an international business or economic transaction under Article 181 (5) of the 1992 Constitution that could only have become operative and binding on the Government of Ghana after being laid before and approved by Parliament.

A declaration that the two Agreements each dated 26th April 2006 as stated in reliefs (1) and (2) herein not having being laid before and approved by Parliament pursuant to Article 181 (5) of the 1992 Constitution is each inconsistent with and in contravention of the said Article 181 (5) of the Constitution and consequently null, void and without operative effect whatsoever.

A declaration that a bridge financing agreement arising between the Republic of Ghana and the 2nd defendant, (Waterville Holding (BVI) Limited), pursuant to the two Agreements each dated 26th April 2006 is each a loan transaction within the meaning of Article 181 (3), (4) and (6) of the 1992 Constitution whose terms and conditions had to be further laid before Parliament and approved by a resolution of Parliament to be operative and binding on the Republic of Ghana.

A declaration that the conduct of the 1st Defendant in paying sums of money in Euros to the 2nd Defendant in purported pursuance of claims by the 2nd Defendant arising out of the said two Agreements each dated 26th April 2006 as stated in reliefs (1) and (2) herein is 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.

A declaration that all transactions and claims by the 3rd Defendant a Ghanaian citizen with one Austro-Invest Management of CH-6302 ZUG Untermuhli 6, Switzerland, (a foreign registered and wholly owned company liquidated on 26th July 2011) premised upon the said two Agreements between the Republic of Ghana and the 2nd Defendant, Waterville Holdings (BVI) Limited, constitute international business transactions within the meaning of Article 181(5) of the 1992 Constitution to be laid before and approved by Parliament to become operative and binding on the Republic of Ghana.

A declaration that the transactions or any purported transaction between the 2nd Defendant, Waterville Holding (BVI) Limited, (a foreign registered and resident company), 3rd Defendant, a Ghanaian citizen, with Austro-Invest Management Limited (also a foreign registered and wholly owned company now liquidated), and the Government of Ghana to syndicate foreign loans and other financial assistances from foreign financial institutions and sources that financially encumbers the Republic of Ghana for the stadia projects, the subject matter of the two Agreements each dated 26th April 2006 aforementioned constitute an international business or economic transaction within the meaning of Article 181 (5) of the 1992 Constitution for the purposed the operability of the transactions.

A declaration that on a true and proper interpretation of Articles 181 (3), (4), (5), and (6) and the spirit of the 1992 Constitution the Republic of Ghana cannot incur liability for any foreign or international loan or expenses incidental to such foreign or international loan transactions without parliamentary approval of the transaction for it to be operative and binding on the Republic of Ghana.

A declaration that conduct of the 1st Defendant in paying or ordering the payment by the Republic of Ghana of claims raised by the 3rd Defendant with the said Austro-Invest premised upon a purported foreign or international financial engineering agreement arising out of the said aforementioned 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 is inconsistent with and in contravention of the letter and spirit of the Constitution, particularly Articles 181 (3), (4), (5), and (6) of the 1992 constitution thereof and are according null, void and without effect whatsoever.

A declaration that the High Court which purported to and assumed jurisdiction in an action commenced by the 3rd Defendant (as Plaintiff) on 19th April 2010 in Suit No. RPC/152/10 against the 1st Defendant 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 1st Defendant acted without jurisdiction: consequently those proceedings and others consequent thereupon of the said High Court are null, void, and without effect whatsoever.

A declaration that the conduct of the President of the Republic of Ghana in stating to the nation in an interview with Radio Gold on 23rd December 2011 that the two international business Agreements of 26th April 2006 and others incidental to it created liabilities for the Republic of Ghana for which the Government of Ghana had to pay to the 2nd Defendant, and 3rd Defendant with the said Austro-Invest as judgment debts are inconsistent with and in contravention of Article 181 of the 1992 Constitution and undermine efforts to defend the Constitution.

A declaration that the conduct of the 2nd Defendant in making a claim for and securing payment through mediation on an alleged breach of contract of the said two Agreements between the 2nd Defendant, (a wholly owned foreign registered and resident company) and the Government of Ghana dated 26th April 2006 when the 2nd Defendant knew that the said two Agreements were international business or economic transaction with loan components that had not been laid before and approved by Parliament under article 181 of the 1992 Constitution to become operative and enforceable is inconsistent with and in contravention of the Constitution.

A declaration that the conduct of the 3rd Defendant jointly with Austro Invest Management Ltd (a foreign registered and resident company subsequently liquidated abroad on 26th July 2011) in making claims upon and including the issuance of a Writ of Summons and Statement of Claim in Suit No. RPC/152/10 dated 19th April 2010 against the Government of Ghana with the written support of the 2nd Defendant and receiving payments thereto premised upon alleged breaches of the said two Agreements dated 26th April 2006 between the 2nd Defendant and the Government of Ghana when the 3rd Defendant with the said Austro Invest Management Ltd, and the 2nd Defendant knew that the said two Agreement were international business or economic transactions which had not been laid before and approved by Parliament to become operative and enforceable is inconsistent with and in contravention of article 181 of the 1992 Constitution.

An order directed at the 2nd and 3rd Defendants to refund to the Repubic of Ghana all sums of money paid to them severally or jointly upon or as a result of the unconstitutional conduct of the 1st Defendant in purported pursuance of the two inoperative Agreements dated 26th April 2006 or any other unconstitutional Agreement as having been made and received by them in violation of Article 181 of the Constitution.

And for such further orders or directions that this Honourable Court may deem appropriate to give full effect or to enable effect to be given to the spirit and letter of the Constitution in this matter generally and particularly Articles 2 and 181 of the Constitution.”

On the facts narrated above, it is the 1st defendant’s contention that he/she did not have any contract with the 3rd defendant. However, the 3rd defendant in his letter of 18th February, 2010 (supra) claimed to have executed financial engineering in respect of the stadia projects with Austro-Invest, originally the 3rd defendant in this suit, which was later struck out, because it had been liquidated. The 1st defendant has pleaded that it never engaged the 3rd defendant contractually. It asserts that in spite of the 3rd defendant’s claim to have played a central role in the activities that led to Ghana hosting CAN 2008, the 3rd defendant worked, not for the Government of Ghana, but exclusively as an agent of Vamed.

Matters relating to the enforcement or interpretation of the Constitution
Introduction: The Supreme Court’s Original Jurisdiction

On the facts set out above, the initial issue which has to be determined by this Court is whether it has jurisdiction to entertain the plaintiff’s suit, alongside the suit already launched by the 1st defendant against the 3rd defendant in the High Court. In this determination, the words of Acquah JSC, as he then was, delivering the ruling of the Supreme Court in Adumoa II v Adu Twum II [2000] SCGLR 165 are helpful. He there said (at p. 167):

“My Lords, the original jurisdiction vested in the Supreme Court under articles 2(1) and 130(1) of the 1992 Constitution to interpret and enforce the provisions of the Constitution is a special jurisdiction meant to be invoked in suits raising genuine or real issues of interpretation of a provision of the Constitution; or enforcement of a provision of the Constitution; or a question whether an enactment was made ultra vires Parliament or any other authority or person by law or under the Constitution: see Gbedemah v Awoonor-Williams (1969) 2 G & G 438; Tait v Ghana Airways Corporation (1970) 2 G & G 527; Yiadom I v Amaniampong [1981] GLR 3, SC; Edusei v Attorney-General [1996-97] SCGLR 1, on review Edusei v Attorney-General (No.2), CM 21/96, 22 April 1998, reported in [1998-99] SCGLR 753 AND Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592, CA.

This special jurisdiction is not meant to usurp or to be resorted to in place of any of the jurisdictions of a lower court. In other words, where our said jurisdiction has been invoked in an action which properly falls within a particular cause of action at a lower court, this court shall refuse to assume jurisdiction in that action, notwithstanding the fact that it has been presented as an interpretation or enforcement suit or both. For, a large number of actions which fall within specific causes can be presented in the form of interpretation or enforcement actions or both. For example, if someone goes to farm or commences building on another person’s land, the latter can file a suit at the Supreme Court invoking its original jurisdiction for a declaration that the said entry unto his land constitutes an invasion of his right to his property under article 18 of the 1992 Constitution, damages for such violation, and an order to recover his property. But it is quite undisputed that such a suit is really a land suit falling within the jurisdiction of the lower court with the authority to handle claims of the value of the land in dispute.”

In this context, an issue that emerges strikingly for constitutional interpretation is the extent to which the nullity of international business or economic transactions in consequence of their non-compliance with article 181(5) of the 1992 Constitution affects restitutionary rights under the common law. To put the issue another way: if an agreement to perform certain acts comes within article 181(5), but has not yet been submitted to Parliament for its approval, is it lawful for the Executive to bypass the obligation of article 181(5) by requesting the acts contemplated under the contract to be performed by its partner anyway and then make payment to the partner under claims for restitution? In principle, it would appear to be clearly against public policy to allow such evasion by the Executive of its constitutional duty. Article 181(5) thus needs to be construed purposively to invalidate claims to restitution in such situations.

This dimension of this case is what brings it within the exclusive jurisdiction of this court under article 130 of the 1992 Constitution. The 2nd and 3rd defendants argue in their Statements of Case that since this Court has already interpreted article 181(5) of the 1992 Constitution in The Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 and The Attorney-General v Balkan Energy Ghana Ltd. 2 ors. Unreported, 16th May, 2012, it is unnecessary for it to assume jurisdiction in this case. They contend therefore that the right forum for this case is the High Court for it to apply the interpretation already put on the provision by the Supreme Court. However, it is clear from the facts set out above that the 3rd defendant does not admit to relying on any contractual provision in the two terminated contracts. So Faroe Atlantic and Balkan Energy are not directly in point. What is in issue is whether there is a penumbra effect of article 181(5) such that rights and obligations which are devised to enable an evasion of the provision’s duty can equally be nullified. This is a task of constitutional interpretation for this court and not for the High Court.

Beyond interpreting whether there is a penumbra effect of article 181(5), this Court needs also to decide whether on the facts of this case the second and third defendants’ rights come within the extended scope of article 181(5), if any.

The Basis for the 2nd and 3rd Defendants’ claims against Government and the relevance, if any, of Article 181(5) to them.

The basis of the alleged liability of Government to the 3rd defendant is quite opaque, given the nature of the action he initiated in the High Court. By the 3rd defendant’s writ, filed by him as plaintiff on 6th May 2010, he claimed the following reliefs (repeated for convenience, although previously set out):

“An order for payment of the sum of E44,259,009.48 or its cedi equivalent at the current forex bureau exchange rate representing cost of services rendered by Plaintiff for the Government of Ghana for procurement of facility in the sum of E1.106,470,587.00 for the construction of sports stadia, medical facilities, irradiation plant and tissue culture facilities between 2001 and 2006.
An order for payment of the sum of E11,600,289.44 being accrued interest on the sum of E44,259,009 from September 2006 up to April , 2010, at the rate of Eurobor 1 year plus three points.
Interest on the sum of E44,259,009.48 or its cedi equivalent at the current forex bureau at the rate Eurobor 1 year plus three points from May 1, 2010, up to and inclusive of date of final payment.
Costs, including Lawyers’ fees.”

The reference in relief “a” to “the construction of sports stadia” suggests a relationship to the 2 terminated CAN 2008 stadia agreements. Given that clearly those agreements never became operative, the basis of the 3rd defendant’s suit as plaintiff would have to be construed as one in restitution, unless he is relying on a different contract of which he has failed to provide the particulars. If he is relying on a different contract, then, of course, this Court would have no jurisdiction in this matter because there would be no issue of constitutional interpretation. The task would fall to the High Court to determine the existence or otherwise of the contract under which he is making his claim. If, however, the 3rd defendant is relying on a restitutionary claim related to the ineffective CAN 2008 stadia agreements, an issue arises as to the impact on such claim of article 181(5) of the 1992 Constitution which vests jurisdiction in this Court to interpret the provision in order to determine its scope.

The right to restitution may arise in relation to a “situation where the defendant has acquired a benefit from or by the act of the plaintiff”. (See Goff & Jones, The Law of Restitution (6th ed., 2002) p. 175. “The plaintiff’s ground of recovery may be that he was mistaken, that he was compelled to do what he did, that he acted out of necessity, that the consideration for his payment had wholly failed, or that the defendant had freely accepted the services which he had rendered or the goods which he had delivered.” (Ibid.) The last but one situation in this list of situations is what is relevant on the facts of this case. In other words, has the State (i.e. the 1st defendant) freely accepted services rendered by the 3rd defendant? If so, does the Constitution permit the State to make payment for those services?

In his own Statement of Case, the 3rd defendant indicates clearly that he is not relying on the two terminated CAN 2008 agreements, but neither does he furnish sufficient evidence of an independent contract on which he relies. Assuming, without admitting, that the 3rd defendant’s stance is supported by the facts upon which the litigation in the High Court is founded, there is thus a twilight area of contested liability which could be construed as either based on restitution, but linked to the ineffective rights under the terminated CAN 2008, or based on non-existent or fraudulent rights and therefore flawed. This twilight area of liability, to the extent that it relies on restitution, calls for constitutional interpretation to clarify the scope of article 181(5) of the 1992 Constitution in relation to rights which are not contractual but related to the contract rights nullified under that provision. To the extent that it is based on non-existent or fraudulent rights, it would be subject to the jurisdiction of the High Court, since it would not come within the exclusive original jurisdiction of this Court, which has been invoked by the Plaintiff’s writ. If, contrary to the 3rd defendant’s assertion in his Statement of Case, he is in fact relying on the ineffective agreements of 26th April, then again this would be a matter within the jurisdiction of the High Court, since it would not require further constitutional interpretation than the existing case law has already provided.

A careful analysis of the facts of this case is therefore necessary to determine this issue of jurisdiction. It has been shown before this Court that there is litigation, initiated by the 1st defendant, in the High Court relating to whether the 3rd defendant has any contract rights against the 1st defendant and whether he is guilty of fraudulent misrepresentation. That is where that litigation belongs and it should not be replicated in this forum. This present action relates to the effect of article 181(5) of the 1992 Constitution and whether it has any applicability to the facts of this case. Also in issue is what consequential orders this Court may make, if it finds that article 181(5) has been infringed. This is the broad brush analytical framework for this case. Against that backdrop, let us now examine the case put forward by the Plaintiff.

The kernel of the Plaintiff’s case is presented in an overview of his case contained in his Statement of Legal Arguments, filed on 8th April 2013. This is what it says:

“The Plaintiff will demonstrate on the pleadings and exhibits that the 2nd and 3rd Defendants colluded and collaborated in a common cause after 20th April 2010 to unlawfully expropriate resources from the Government of Ghana under the guise of claims pursuant to the two Agreements dated 26th April 2006. After the 3rd Defendant’s letters of 18th August 2009 and 18th February 2010 challenging the 2nd Defendant’s petition to the 1st Defendant for further payments to the 2nd Defendant for breach of the two Agreements 26th April 2006 (sic), the 3rd Defendant wrote a letter dated 19th April 2010 to the 2nd Defendant to confirm to the 1st Defendant that the financial structuring aspect which the 3rd Defendant was claiming in the 3rd Defendant’s expanded petition of 18th February 2010 was part of the project for the consortium (sic) and rehabilitation of the stadia. It may be recalled that Tetteh & Co had on behalf of the 2nd Defendant disputed the claims and rights of the 3rd Defendant under the 26th April 2006 Agreements in a letter dated 20th November 2009. On 20th April 2010 the 2nd Defendant wrote directly to the 1st Defendant referring to the letter of the 3rd Defendant: “… dated 19th April 2010 by which he requested confirmation to your office about the financial structuring aspect as part of the project for the consortium (sic) and rehabilitation of stadia in Ghana for CAN 2008.” The 2nd Defendant as if under blackmail, then confirmed the demand of the 3rd Defendant to the 1st Defendant. (See exhibit “MAA annexed to the Statement of Case of the Plaintiff for the 2nd Defendants letter of 20th April 2010) (sic). The 2nd Defendant and 3rd Defendant from then on made common cause by colluding, collaborating and starting to use Kofi Peasah-Boadu of Peasah-Boadu & Co. as their common lawyer in the mediation, and in the Writ and Statement of Claim filed in the High Court on 19th April 2010 against the Government of Ghana. The 1st Defendant personified by Hon. Mrs Betty Mould-Iddrisu with full knowledge as a statutory Member of the General Legal Council and leader of the Bar of Ghana that the conduct of the 2nd and 3rd Defendants and their Solicitor, Kofi Peasah-Boadu of Peasah-Boadu & Co, offended the Legal Profession (Professional Conduct and Etiquettes Rules), 1975 (L.I. 613) engaged them in unconstitutionally mediating and settling their claims against the Government contrary to Article 181 of the Constitution. The plaintiff will conclude by urging this Court in making consequential orders pursuant to Article 2(2) of this action to find that the conduct of the Defendants was each inconsistent with and in contravention of the Constitution and also to admonish the conduct of the Solicitors herein and refer same to the General Legal Council for abuse of the process and deceit of this Court.

The Plaintiff’s Statement of Legal Arguments seeks to establish that the 3rd Defendant’s claim for fees and interest embodied in his amended writ of 6th May 2010 in fact arises from the two terminated agreements of 26th April 2006. Since those agreements never became legally enforceable contracts, it has to be inferred that, on his arguments, the obligations in issue come within the twilight zone earlier referred to which require constitutional interpretation to determine whether the penumbra effect of article 181 makes them also unconstitutional. This Court has jurisdiction to determine whether restitutionary rights claimed in relation to the two terminated agreements are valid, in the light of article 181. In this connection, we think that a distinction should be made between the effect, on the one hand, of illegality of contract and, on the other hand, of unconstitutionality of contract on restitutionary rights.

In City & Country Waste Ltd. v Accra Metropolitan Assembly [2007-2008] 1 SCGLR 409 (hereafter referred to as the CCWL case) this Court explained the common law approach to restitution in relation to illegal contracts as follows (at p. 435):

“There is a long-standing approach in the English common law, dating back to the eighteenth and nineteenth centuries, according to which where a contract is found to be illegal, the benefits conferred under it are not recoverable. The decided cases have tended to deal with the recovery of money paid or property transferred under an illegal contract. But even this traditional English approach was subject to exceptions. The two main exceptions to the English general rule that a party cannot recover a benefit conferred on the other party under an illegal contract are: first, where the parties are not in pari delicto; and, second, where a party to an executory contract repents before performance.”

In the CCWL case, the Supreme Court injected some flexibility into the received English common law rules. This is what the Court said (at p.436-7):

“The next issue arising therefore is whether the Plaintiff is not in pari delicto with the Defendant according to the orthodox English authorities on the issue. A review of the English case law reveals that, in assessing the fault of the parties, the law adopts a rather technical approach, according to which recovery is allowed only where a Plaintiff can demonstrate that he or she was induced to enter into the illegal contract by the fraud, duress or oppression of the other party; or that he or she was ignorant of a fact that rendered the contract illegal; or that he or she belonged to a vulnerable class protected by statute. By way of illustrating the last category, the words of Lord Mansfield in Browning v Morris (1778) 2 Cowp. 790 at 792, may be quoted:

“Where contracts or transactions are prohibited by positive statutes, for the sake of protecting one set of men from another set of men; the one, from their situation and condition being liable to be oppressed and imposed upon by the other; there, the parties are not in pari delicto and in furtherance of these statutes, the person injured after the transaction is finished and completed, may bring his action and defeat the contract.”

We do not think that we ought in this Court to be constrained excessively by the weight of the English case law in finding a just outcome in this case. Rather, we are encouraged to develop Ghanaian law in this area by some of the ideas contained in the English Law Commission’s Consultation Paper No. 154 on Illegal Transactions: The Effect of Illegality on Contracts and Trusts. This Consultative Paper, after an extensive and erudite review of the complex English law in the area, concludes as follows (at p. 91):

“We have said that we believe that there is a continued need for some doctrine of illegality in relation to illegal contracts and that, in certain circumstances, it is right that the law should deny the plaintiff his or her standard rights and remedies. However, we have also explained how, in some situations, we believe that the plaintiff is being unduly penalised by the present rules. This injustice would seem to be the inevitable result of the application of a strict set of rules to a wide variety of circumstances, including cases where the illegality involved may be minor, may be wholly or largely the fault of the defendant, or may be merely incidental to the contract in question. We consider that the best means of overcoming this injustice is to replace the present strict rules with a discretionary approach under which the courts would be able to take into account such relevant issues as the seriousness of the illegality involved, whether the plaintiff was aware of the illegality, and the purpose of the rule which renders the contract illegal. The adoption of some type of discretionary approach has the support of the vast majority of academic commentators in this area; and it is the approach which has been followed in those jurisdictions where legislation has been implemented. Moreover, we have not been able to devise a new enlightened regime of “rules” that would provide satisfactory answers to all disputes involving illegal contracts. In our view, a balancing of various factors is required so that, put quite simply, the law on illegal contracts does not lend itself to a regime of rules.”

We have decided to adopt this structured discretionary approach to the resolution of issues arising from illegality of contracts. The approach is to be fleshed out on a case by case basis. On the facts of the present case, balancing the need to deny enforceability to the contract sued on by the Plaintiff against the need to prevent the unjust enrichment of the Defendant, and, considering that in relation to the Defendant’s non-compliance with the statutory provisions binding on it, the Plaintiff was not in pari delicto in a broad sense, we have come to the conclusion that the Plaintiff must be paid reasonable compensation for the services it rendered to the Defendant.”

Thus, even assuming that the 2nd and 3rd defendants are not in pari delicto with the 1st defendant in the breach of article 181, the fact that the norm breached is a constitutional provision, in contradistinction to breach of an ordinary statute, is a relevant consideration. Clearly there should be less room to award a restitutionary remedy where the breach is of a constitutional provision. A contract which breaches article 181(5) of the Constitution is null and void and therefore creates no rights. (See The Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 and The Attorney-General v Balkan Energy Ghana Ltd. 2 ors. Unreported, 16th May, 2012.) It should not be legitimate to evade this nullity by the grant of a restitutionary remedy. Although one accepts the cogency of the argument that there is need to avoid unjust enrichment to the State through its receipt of benefits it has not paid for, there is the higher order countervailing argument that the enforcement of the Constitution should not be undermined by allowing the State and its partners an avenue or opportunity for doing indirectly what it is constitutionally prohibited from doing directly. The supremacy of the Constitution in the hierarchy of legal norms in the legal system has to be preserved and jealously guarded. Thus the flexibility that the Supreme Court introduces in the CCWL case is to be exercised sparingly in the case of breaches of the Constitution. The requirement that international business contracts to which the Government is a party should be approved by Parliament has a purpose and it should be made clear to Government and its partners that non-compliance with the requirement, directly or indirectly, will have consequences. We are accordingly inclined to the view that, where article 181(5) has been breached, a restitutionary remedy would be in conflict with the Constitution and therefore not available.

Having interpreted article 181(5) to cover restitutionary claims connected to contracts or agreements within the ambit of the provision, what this Court needs to do next is to analyse the facts of this case to establish whether the 2nd or 3rd defendant is the beneficiary of any such restitution. The invalidity of any such restitution would imply a duty to pay back whatever has been received pursuant to such restitution. On the other hand, if payments have been made to the 2nd or 3rd defendants under agreements other than the two dated 26th April 2006, which were terminated, issues relating to those payments would have to be determined in a forum other than this Court and in a different action, since they do not come within the issue of constitutional interpretation raised by the Plaintiff’s writ.

Also submissions based on the assertion that the 3rd defendant had no contract with the Government of Ghana and therefore had no valid claims against the Government should be heard and determined by the High Court, and not by this Court, since they do not involve, according to the relevant case law, the interpretation or enforcement of the Constitution and do not therefore fall within the ambit of this Court’s original exclusive jurisdiction under article 130(1) of the 1992 Constitution. For instance, the Plaintiff states in his Statement of Case at para 27 that:

“The Plaintiff maintains that throughout the subsistence of the transactions between the 2nd Defendant, (Waterville Holdings (BVI) Limited), and the Government of Ghana, the 3rd and 4th Defendants were merely the agents of the 2nd Defendant and were not privy to the two contracts dated 26th April 2006 or any other contract.”

This is a matter which should be heard and determined by the High Court and not this Court.

Factual Analysis and Its Impact on the Result of the Case

2nd Defendant

The Government’s action in paying the 2nd defendant for the work it did prior to the conclusion of the terminated 26th April agreements was unconstitutional, according to the analysis already set out above. According to the plaintiff’s averment in his Statement of Case, verified by affidavit:

“22. The Plaintiff says in addition that facts available to the Plaintiff indicate that consequent upon the abrogation of the two Agreements dated 26th April 2006, two Ghanaian companies who were sub-contractors of the 2nd Defendant, (Consar Limited, for the Kumasi projects, and Micheletti (Ghana) Limited, for the Accra stadia project) were awarded by the Government of Ghana the right to adopt, continue, and execute the works started by the 2nd Defendant and to reimburse the 2nd Defendant directly for expenses incurred for works already executed by the 2nd Defendant in anticipation of approval of the Agreements by Parliament.”

This reimbursement, as already indicated above in the narration of the facts of this case, was with funds provided by the Government of Ghana. The value of the work already executed was to be ascertained by the consultant to the project, BIC. The attitude of the Government of Ghana towards the restitutionary claim of the 2nd Defendant is made clear by the following passage from a report dated 16th December 2011 which was submitted to the President by the Deputy Attorney-General:

“The Waterville Holdings Mediation

On 26th April 2006, the Government of Ghana entered into two separate but similar agreements with Waterville Holdings for the rehabilation of the Accra, El Wak and Kumasi Sports Stadia for the MTN Africa Cup of Nations (Ghana 2008) football tournament.

Waterville was the main contractor in both agreements with Micheletti and Consar acting as sub-contractors for Waterville. On 6th February 2006, before the formal signing of the agreements on 26th April 2006, the sites were handed over to Waterville, which commenced works involving demolition, excavation and clearing of the project.
On 1st August 2006, however, the NPP administration unilaterally terminated the agreements and re-awarded them to the sub-contractors. At the time of the termination, Waterville had mobilised for work in all three stadia. Government then requested the consultants to the projects, Building Industry Consultants (BIC) Limited to value the work done by Waterville before the termination.

BIC prepared the valuations and issued its certificate on 23rd August 2006. The total value of the certificate amounted to:
Accra Stadium E9,061,359.53
El Wak Stadium E1,842,192.79
Kumasi Stadium E9,587,691.05
Total E20,491,448.37

The certificates also included certain amounts designated as Project Engineering Fees which amounted to:
Accra Stadium E1,663,722.01
El Wak E 133,673.93
Kumasi Stadium E3,348,070.20
Total E3,348,070.20

Subsequent to this, Waterville received payments of only E8,980,522.28 through Micheltti and Consar for its work on the three stadia. In a letter to Government dated 23rd December 2006, the Solicitors for Waterville indicated that it had been paying interest on the pre-finance loan for the work done and also interest accruing on account of the delay in payment. The NPP administration refused to negotiate or pay any compensation to Waterville after the Project Consultant had completed its valuation.

Numerous interventions and petitions by Waterville to the NPP government were ignored. In 2009, its Solicitors approached the Attorney General for the payment of what was due it since 2006. On the basis of the valuation conducted by BIC Limited, the AG concluded that there was no dispute regarding the certified claims by Waterville against the State and that certain monies were really owed Waterville.

Waterville also indicated that the one-year liability period had lapsed and accordingly the 5% retention fee amounting to E504,626.16 for defect liability in respect of the three stadia should be paid to them.

These amounts, when added to the bills certified by BIC Ltd amounted to E21,569,946.71 less earlier payments made to Waterville. Accordingly, the amount due Waterville after all the deductions was E9.634,240.15. Waterville, however, made claims for sums due for loss of profit, mobilisation and demobilisation, interest since 2006 and damages.

Despite the undisputed and independently certified amount owed to Waterville the AG held a series of meetings with Waterville to negotiate the amount downward but no conclusions were reached. On 14 June 2010, the Solicitors for Waterville indicated that negotiations had failed and invoked the mediation provisions of the abrogated contract.

The claim for Waterville before the Mediator included the following:

A declaration that the purported termination of the contract by the NPP administration was unlawful

An order for the payment of E9,634,240.15 being balance due on works certified by BIC Limited

Payment for the sum of E3,123,754.56 being accrued interest at the rate of eurobor plus 3 points as at June 2010

Interest on the sum of E 9,634,240.15 at eurobor plus 3 points from 16 June 2006 till date of payment

Payment of the sum of E13,426,261.28 being loss of profits occasioned by the termination
Interest on the sum of E13,426,261.28 at eurobor plus 3 points from 16 June 2006 till date of payment

Legal fees of E1,200,000.00

General damages of E20,000,000.00 for breach of contract.

This was subsequently revised to a figure of E36,684,255.99. Following a series of mediation sessions, Waterville indicated that it was prepared to accept a sum of E32 million in full and final settlement of all claims against the GOG.

In October 2010, the Mediator recommended and it was accepted by both parties that the GOG pay a mediated sum of E25 million in full and final settlement of all claims by Waterville against the State. The NDC Government has since paid the E25 million to Waterville.”

This is an extraordinary account of the State’s view of its liability to the 2nd defendant. In our view, it was fundamentally erroneous in ignoring the effect of article 181(5) of the 1992 Constitution on the transaction. From the analysis earlier made of the penumbra effect of article 181(5), we would reaffirm that there is no liability of the State to the 2nd defendant. The 2nd defendant is thus obliged to return all monies paid to it pursuant to the transaction. The settlement, pursuant to which the monies were paid, was founded on an unconstitutional act and should be treated as null and void. It is obvious that the agreements of 26th April never became operative and even if they had become effective they would have been null and void if not approved by Parliament. Equally, any restitutionary claims intended to achieve results similar to those contemplated by the provisions in the inoperative agreements of 26th April would be invalid. The Supreme Court has jurisdiction under article 2(2) of the 1992 Constitution to make a consequential order compelling the 2nd defendant to refund all monies paid to it in relation to the work that it did on the stadia.

The 2nd defendant, however, does not consider that it is under any such liability. Its case is that its Consortium won the international invitation for bidding and that it was awarded the contract. It argues that under the Public Procurement Act, 2003 (Act 663), the tendering process was completed and an application made to the Central Tender Review Board which gave concurrent approval by a letter dated 5th August, 2005. It is further the 2nd defendant’s case that following this approval by the Central Tender Review Board, there was a continuing legally binding obligation on the Government, under section 65 of the Public Procurement Act, which provides an irrevocable procedure leading to a formal written procurement contract. The 2nd defendant further contends that neither the Minister of Education and Sports nor the Attorney-General had authority to cancel the tendering process. Accordingly, the assertion of administrative action in the letter of 22nd August 2005 was ultra vires and without legal effect. It asserts that the Minister with authority to terminate the process was the minister responsible for finance. The 2nd defendant makes the following further arguments in its Statement of Case:

“It is further submitted that it was the Government of Ghana which was required to obtain cabinet approval and also having submitted the contract to CTRB for concurrent approval, it sounds ill in the mouth of the Government of Ghana to say it was unable to obtain cabinet approval for the award of the contract.

Besides, the Government of Ghana had authorised 2nd Defendant to prepare designs and also to take physical possession of the stadia, demolish structures and reconstruct the stadia when it well knew it had not obtained cabinet approval.

It is further submitted that 2nd Defendant could arrange the bridge financing only after the contract had been signed and therefore there cannot be any documentation as yet on the bridge financing.

The 2nd Defendant’s finance was concessional and also contained a 15% pure grant. It was guaranteed by the World Bank, MIGA. The funding was coming from A+++through Bank Austria.

It is clear from the above that the 2nd Defendant does not emphatically accept the contents of the letter dated 22nd August, 2005, on the basis that it was not lawful under the Procurement Act, Act 663, or at all and also violates protocol signed between Ghana and its development partners like IMF, World Bank, World Trade Office and donor partners.”

It is obvious that the 2nd defendant is in error as to the legal effect of the inchoate contracts embodied in the two stadia agreements. Without the satisfaction of their conditions precedent, they could not become enforceable contracts. That is trite law. Nothing in the Public Procurement Act, 2003 (Act 663) changes this basic common law position. In spite of this the Government and the 2nd defendant entered into a mediation process, based on the inchoate contracts, treating them as if they were in force. The result of that process was, as indicated in the Deputy Attorney-General’s report quoted above, a settlement which resulted in the payment of 25 million Euros in full and final settlement of the 2nd defendant’s claim in October 2011.

The 2nd defendant justifies its claim on the basis that it was not based on the terminated contracts, but on quantum meruit. The following paragraphs from the 2nd defendant’s Statement of Case are instructive:

“My Lords, the 2nd Defendant’s claim was not based on enforcement of the two Agreements dated 26th April 2005. Neither did the Government of Ghana pay 2nd Defendant the sum of E 25 million pursuant to enforcement of the two Agreements aforesaid.

The Government of Ghana by a letter dated 6th February, 2006, authorised 2nd Defendant to execute certain works in connection with the three stadia.

In the course of execution of the works the Government, on August 1, 2006, terminated the two Agreements.

The 2nd Defendant applied to be paid the value of works executed up to the point of termination together with incidental expenses. The 2nd Defendant’s claim was based on quantum meruit.”

Later, the 2nd defendant restates this argument in paragraph 72 of its Statement of Case as follows:

“2nd Defendant’s claim derives its validity from work done and not in pursuance of the Agreements dated April 26, 2006.”

As already explained earlier at considerable length, this quantum meruit claim falls within the penumbra of the obligation provided for in article 181(5) and is therefore invalid.

A further argument that the 2nd defendant puts forward to defeat the Plaintiff’s action is to challenge his capacity to institute this action. It maintains that by Article 88(1) and (5) of the 1992 Constitution, the Plaintiff has no capacity to bring the present action. The steps in his argument are as follows: the Attorney-General, the first defendant herein, is the person clothed with authority under Article 88(5) to conduct all civil cases on behalf of the State.

He has indeed brought action in the High Court against the 2nd and 3rd defendants, as already earlier narrated. The framers of the 1992 Constitution never intended that where the Attorney-General has initiated a civil action on behalf of the Republic at a court of competent jurisdiction, any citizen can maintain an action in respect of the same or substantially the same matter at the Supreme Court. The 2nd defendant accordingly submits that the Plaintiff’s action is an abuse of the process of the Supreme Court. He further submits that the Plaintiff is seeking to usurp the authority of the Attorney-General.

The 2nd defendant’s submissions on this issue of the Plaintiff’s capacity are, with respect, ill-founded. The fact that the Attorney-General has brought a civil action on a particular issue cannot derogate from a citizen’s right under Article 2(1) of the 1992 Constitution to seek a declaration and consequential orders from the Supreme Court in relation to the same issue if it involves any act or omission which the citizen alleges to be inconsistent with, or in contravention of, a provision in the Constitution. What is necessary for the citizen to do is to establish that he or she comes within the parameters laid down in Articles 2(1) and 130(1). If he or she does this, the mere fact that the Attorney-General is conducting litigation in the High Court which is linked to the subject-matter of his or her action will not ordinarily be a bar to the action.

3rd Defendant
The 3rd defendant, in his letter of 18th August 2009 which is quoted in full (supra), in effect admitted that he was not a party to the 26th April agreements. He wrote that: “The claim by Waterville BVI should have been a joint claim by M-Powapak, Alfred Woyome, and Austro Invest.” A reasonable interpretation of this sentence is that the 3rd defendant’s claim was merely to share in the rights of the 2nd defendant, who was the party to the agreements, although he had earlier claimed that:

“I was the one who engineered the whole CAN 2008 concept, pursued it through with three (3) consecutive Ministers of the Sport Ministry/Department over the period.
I engineered the finances, which covered the construction of Stadia Hospitals, and Youth and Skills Training Centres to be built countrywide.”

The absence of evidence that the 3rd defendant was a party to the 26 April agreements has a significance for the jurisdiction of this Court over him in this case. It makes it difficult to accept the Plaintiff’s contention that this Court should assume jurisdiction to interpret article 181(5) of the 1992 Constitution in relation to him also. The declarations sought by the Plaintiff relate to those agreements. Accordingly, since the 3rd defendant is not a party to the agreements, he would not be a proper subject of the jurisdiction of this court, unless he is the beneficiary of restitution that is within the penumbra effect of article 181(5) of the 1992 Constitution.

It has already been pointed out that the endorsement on the 3rd defendant’s writ of summons against the 1st defendant, which resulted ultimately in the consent judgment against the State, is not explicit about the contractual or other legal basis pursuant to which it was brought. In response to this fact, the plaintiff has made extended submissions aimed at establishing that the High Court should have declined jurisdiction over the writ on the ground that it lacked jurisdiction because of the failure of the 3rd defendant to endorse a cause of action on his writ. While this is an interesting argument, it is not one that this Court is obliged to consider under its original jurisdiction. In other words, it does not call for constitutional interpretation or enforcement, as this phrase has been interpreted in the case law.

It is the High Court which should determine the issues raised by the Plaintiff’s Statement of Legal Arguments in relation to the 3rd defendant. Those issues relate to whether there was any privity of contract between the 3rd defendant and the Government of Ghana; whether the 1st defendant’s writ of 19th April 2010 in the High Court was based on the two terminated agreements or an independent financial engineering agreement; whether the 3rd defendant’s writ against the 1st defendant was endorsed with any enforceable cause of action; etc. From the exhibits in this case, it is clear that those issues are already in controversy in the High Court, at the suit of the 1st defendant. The clarification and interpretation that we have made in this case about the scope of article 181(5) of the 1992 Constitution, together with the earlier interpretations made by this Court in The Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 and The Attorney-General v Balkan Energy Ghana Ltd. 2 ors. Unreported, 16th May, 2012, should assist the High Court in determining the matters which do not come within the ambit of the exclusive original jurisdiction of this Court under article 130(1) of the 1992 Constitution. There is no fresh issue for interpretation or enforcement that requires the invocation of this Court’s original jurisdiction. It should be stressed that it is not optional for this Court to decide whether issues of constitutional interpretation already settled by stare decisis or issues relating to privity of contract etc. should be dealt with by the High Court or by this Court. This is a jurisdictional issue and therefore unless the plaintiff is able to demonstrate that particular issues come within the exclusive original jurisdiction of this Court, this Court is obliged to decline jurisdiction. This Court’s refusal of jurisdiction is, however, without prejudice to the merits of the plaintiff’s case when it is put forward in the appropriate forum.

Our preferred locus classicus on the original jurisdiction of this Court, buttressing the position adopted above, remains the words of Anin JA, in Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592 at 605, where he said of a previous provision in pari materia with the current provisions that:

“From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118(1)(a) arises in any of the following eventualities:

where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double-meaning or are obscure or else mean something different from or more than what they say;

where the rival meanings have been placed by the litigants on the words of any provision of the Constitution;

where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;

where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.

On the other hand, there is no case of “enforcement or interpretation” where the language of the article of the Constitution is clear, precise and unambiguous. In such an eventuality, the aggrieved party may appeal in the usual way to a higher court against what he may consider to be an erroneous construction of those words; and he should certainly not invoke the Supreme Court’s original jurisdiction under article 118. Again, where the submission made relates to no more than a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises.”

We think that, in this case, what is called for is an application by the High Court of the provisions of the Constitution to the facts relating to the 3rd defendant.

The 1st Defendant

The plaintiff’s case against the 1st defendant is that the Attorney-General’s conduct in handling the dispute with the 3rd defendant was inconsistent with and in contravention of Article 2(1)(b) of the 1992 Constitution. In his Statement of Legal Arguments, he makes the following argument in support of this contention:

“The subsequent conduct of the 1st Defendant in failing or refusing to defend the Government of the Republic of Ghana against the unconstitutional settlement she reached with the 3rd Defendant when the 3rd Defendant commenced the unconstitutional action against the Government of Ghana on 19th April 2010 based solely upon that settlement and her letters to the Minister of Finance and Economic Planning dated 11th March 2010, 11th April 2010 and 29th April 2010 is conduct inconsistent with and in contravention of article 181 of the 1992 Constitution. That the 1st Defendant’s conduct to contravene the Article 181 of 1992 Constitution in favour of the 3rd Defendant was purposeful and deliberate is demonstrated by the subsequent affidavit deposed to by Nerquaye-Tetteh, Chief State Attorney, for and on behalf of the 1st Defendant Hon. Mrs. Mould-Iddrisu with her authority that there was indeed no contract between the 3rd Defendant and the Government of Ghana to warrant any settlement between the 1st Defendant on behalf of the Government of Ghana and the 3rd Defendant. In the ruling of the High Court dated 9th July 2010 refusing the 1st Defendant, then personified by Hon. Mrs Mould-Iddrisu’s application to set aside the terms of her own unconstitutional settlement and adopting the terms of the settlement as the consent judgment of the parties in that suit, Justice I.O. Tanko Amadu quoted the supporting affidavit of the 1st Defendant deposed to by Samuel Nerquaye-Tetteh, Chief State Attorney, on behalf of the then Attorney General at paragraph 10 of the ruling as follows:

“That the failure of the Applicants to file a defence was not deliberate or in disrespect of the court but was due to an earlier position taken on the matter by the Applicants.
That the Applicants then were of the mistaken belief that there was no defence to the claim and therefore did not file a statement of defence.

That it has now come to the knowledge of the Applicants that there is a defence to the action.

Furthermore the terms of settlement stated an amount of GHc51,283,480.59 instead of an amount of GHc41,811,480.59.

That in the circumstances, it is the prayer of the Applicant that they are granted leave to file their defence out of time to enable them defend the claim on the merits of the case.”

In paragraph 29 of the ruling the learned High Court judge had this to say in respect of the Deputy Minister for Finance and Economic Planning’s letter of 4th May 2005 exhibited to Samuel Nerquaye-Tetteh’s affidavit deposed to on behalf of the Attorney General Hon. Mrs. Mould-Iddrisu as Exhibit ‘AG’:

“29. I have no doubt in my mind that Exhibit ‘AG 1’ referred to in the affidavit of Samuel Nerquaye-Tetteh which is said to form the basis of the Defendant’s new found defence to the Plaintiff’s claim was in actual or constructive possession of the Defendant/Applicant before the terms of settlement was executed and before Exhibit ‘AW1’ attached to the Plaintiff/Respondent’s affidavit was authorized. The Defendant/Applicant did not find Exhibit ‘AG1’ sufficiently weighty to constitute a defence to the action and cannot purport to seek to do so now as same will result in permitting piecemeal litigation…”

This Court may wish to take judicial notice of the fact that Exhibit ‘AW1’ referred to in the judgment is the 1st Defendant’s own authorizing the Minister of Finance and Economic Planning to pay the 3rd Defendant which formed the basis of the 3rd Defendant’s action of 19th April 2010 in the High Court. The Plaintiff submits that the determination of the 1st Defendant to disregard the decision of this Court in Attorney General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271 and the legitimate and constitutional opinion of her predecessor Hon. Joe Ghartey to abrogate the contract for failure to meet conditions precedent to present the Agreements to Parliament for approval showed her resolve to act in a manner inconsistent with and in contravention of the Constitution.”

The Plaintiff’s “charge” against the 1st defendant has far-reaching implications. What the Plaintiff is seeking to assert is that faulty judgment or negligence in the exercise of discretion by a Minister or public servant may be interpreted as unconstitutional conduct. Our view on this issue is not needed for the resolution of the case before us. This is because we do not find that any issue of interpretation or enforcement of article 181 of the Constitution arises in relation to the conduct of the 1st defendant which this Court needs to address under its original jurisdiction. The provisions of article 181 are clear enough, as interpreted by the cases decided by this Court. What is called for is for the clear provisions of the Constitution to be applied to the facts as they relate to the 1st Defendant. This aspect of the present case is a classic illustration of what Acquah JSC, as he then was, urged this Court not to do in Adumuah II v Adu Twum II (supra) in relation to this Court’s special jurisdiction under article 130:

“This special jurisdiction is not meant to usurp or to be resorted to in place of any of the jurisdictions of a lower court. In other words, where our said jurisdiction has been invoked in an action which properly falls within a particular cause of action at a lower court, this court shall refuse to assume jurisdiction in that action, notwithstanding the fact that it has been presented as an interpretation or enforcement suit or both. For, a large number of actions which fall within specific causes can be presented in the form of interpretation or enforcement actions or both.”

The Plaintiff’s charge, accordingly, needs to be decided on by the High Court. Thus the jurisdictional analysis made above in relation to the 3rd defendant is equally applicable to the 1st Defendant.

Reliefs
In the result, we are unanimously of the view that this Court should grant the plaintiff some, but not all, of the reliefs he seeks. The reliefs to which he is entitled, in the light of the analysis of the law and facts set out above, are as follows: Reliefs 1, 2 and 3 endorsed on the writ are hereby granted. It is not necessary to grant Relief 4, since it is subsumed in the first 3 reliefs. Relief 12 is also granted. Relief 14 is granted to the extent that the order is directed at the 2nd defendant, requiring it to refund to the Republic of Ghana all sums of money paid to it in connection with the two inoperative Agreements dated 26th April 2006 and the work done on the stadia. Orders against the 3rd defendant, if any, will have to await determinations made in the High Court. Any other reliefs endorsed on the plaintiff’s writ which are not specified above as having been granted are hereby denied, on jurisdictional grounds, without prejudice to any reliefs that the High Court may grant in the future.

The Plaintiff’s Complaint about Named Lawyers
In the penultimate paragraph of the Plaintiff’s Statement of Legal Arguments, he makes the following submission:

“The Plaintiff submits and urges this Court to determine that on the balance of probabilities the unconstitutional conduct of the Defendants and the Solicitor for the 2nd and 3rd Defendants, Kofi Peasah-Boadu of Peasah-Boadu & Co. were collusive, collaborate and a fraudulent misrepresentation that enable them to expropriate the resources of the sovereign people of Ghana contrary to Article 181 of the 1992 Constitution. The Plaintiff has also submitted and urges this Court to find that the conduct of the Solicitors for the 2nd and 3rd Defendant in this action in seeking Kofi Peasah-Boadu of Peasah-Boadu & Co. and O. Osafo Buabeng of Oseawuo Chambers & Co to suppress the fact that the 2nd Defendant received payment Micheletti & Co. Ltd. (sic) and Consar for works that they took over from the 2nd Defendant constitute an abuse of the process of this Court as an officer of the Court. The Plaintiff additionally submits and urges this Court to find that the Solicitors for the 3rd Defendant in this action, O. Osafo Buabeng of Oseawuo Chambers & Co, in seeking to suppress the fact that Bank Austria Creditanstalt A.G. withdrew from the loan and bridge financing transaction without making any resources available to the Government of Ghana under Article 181(3) and (4) of the Constitution was abusing the process of this Court as an officer of the Court. The Plaintiff submits that this Court has the power under Article 2(2) of the 1992 Constitution to make such orders as would address the unprofessional conduct of lawyers who plead and advocate cases before it and urges this Court to exercise its discretion in such a way as will prevent the future abuse of its process by legal practitioners contrary to the Legal Profession (Professional Conduct and Etiquette Rules), 1975 (L.I. 663).”

This complaint by the Plaintiff is hereby referred to the General Legal Council for consideration by its Disciplinary Committee. That Committee offers a preferable forum for the resolution of issues relating to the professional conduct of lawyers. The Plaintiff may accordingly pursue his complaint in that forum. The Registrar of this Court is hereby ordered to serve a copy of this judgment on the General Legal Council.

Conclusion

CONCURRING OPINION

DOTSE JSC Even though I fully agree with the entire judgment delivered by my most respected brother Date-Bah JSC, and the conclusions reached in this epoch making decision, I feel constrained to add the following words of my own.

This is because I am of the considered opinion that the time has indeed come for both practitioners of the Law, and my brethren in the lower courts to always take into consideration some pre-commencement of legal proceeding requirements and rules of procedure in the law courts much more seriously than they had been doing.
As the facts of this case have already been masterfully stated, it is pointless for me to do so.

ROLE OF COUNSEL IN CONDUCTING CASES IN THE LAW COURTS
Even though the role of Counsel in representing his client is mainly to ensure that his client gets the best of legal representation within the scope of his instructions, there is a corresponding duty on counsel to ensure that his conduct is within the framework of standards of professional etiquette and conduct for Lawyers as stipulated in Rules made for that purpose as contained in section 23 of the Legal Profession Act, (1960) Act 32.
In this case for example, if learned counsel for all the Defendants had applied themselves diligently to the facts of this case, as has been beautifully narrated in the lead judgment, and also adverted themselves to certain critical exhibits, perhaps, just perhaps, they might have taken a different stance and given different professional legal advice.

For example, the letter written by the 3rd Defendant to the 1st Defendant, attached to these proceedings as Exhibit AG16 – (1st Defendants Statement of Case) and also the letter of Tetteh & Co, then Solicitor for the 2nd Defendants which is attached to 1st Defendants statement of case as Exhibit AG17 are really instructive.

From the above, it would have become very clear to whoever was in charge of directing affairs at the 1st Defendants office, that the claims of the 2nd and 3rd Defendants against the Government of Ghana cannot hold water.

It is in this respect that I am of the considered opinion that, even though Lawyers owe a duty to their clients, they also in a wider sense owe a general duty to the country Ghana and to their consciences as well as to their professional Rules of etiquette and standard.
This is because from available documents and correspondence, there is a lot of documentary material to the effect that the 3rd Defendant in particular had no business or contract with the Government of Ghana. Indeed, counsel for the 3rd Defendant would have done himself a lot of good if he, whilst acting for the 3rd Defendant at the material time had interrogated the issues thoroughly, he would have realised that his client was not entitled to what they claimed in the High Court and obtained judgment for.

No doubt, learned counsel for the 3rd Defendant in the now infamous “Woyome Payment Scandal” in the trial High court, cleverly avoided acting for the 3rd Defendant in this court, but chose rather to act for the 2nd Defendant, whose claims against the Government of Ghana were denied at the material time by the 3rd Defendant.

A perusal of exhibits AG 16 and AG 17 already referred to supra indicate quite clearly that the 2nd and 3rd Defendants after their initial disagreements about their entitlements, later entered into an alliance to create, loot and share the resources of this country as if a brigade had been set up for such an enterprise.

It is my respectful opinion that, no matter what the monetary attractions are, every counsel owes a duty to the ethics of the Legal Profession and to his own conscience to ensure that whatever claims are pursued on behalf of his client, are not only legitimate, lawful, just and legal, but reasonable under the circumstances of the case.

It is in this respect that I consider it worthwhile to refer to the unanimous decision of this court in the unreported consolidated case suit number J5/14/2013 -Republic v High Court, Kumasi, Ex-parte Bank of Ghana, Mr. Kwesi Ammisah-Arthur & Franklin Belnye – Applicants, Rev. Rocher De-Graft Sefa and Ernest Kwasi Nyame Asiedu – Interested Parties and suit number J5/15/2013 – Republic v High Court, Kumasi, Ex parte Bank of Ghana, Mr. Kwesi Ammisah-Arthur & Franklin Belnye – Applicants, Samuel Gyamfi & 693 Ors – Interested Parties Coram: Wood (Mrs) C. J. Presiding, Dotse, Yeboah, Benin and Akamba JJSC, where the court expressed similar sentiments about the conduct of Lawyers of the Applicants (therein) Bank of Ghana which led to default judgment being granted against them

In view of the seriousness which this court attaches to this phenomenon which has crept into our legal practice, I would quote in extenso from the said Ruling as follows:

“Due to the gargantuan nature of the claims against the Applicants, one would have expected a much more diligent and fast approach towards the handling of the suit. We would be very much surprised, if the external Solicitors of the 1st Applicants is a one man chambers such that with his incapacitation, work in his office automatically came to a halt. Even if that is the situation, we expect the legal department of the applicants to have entered appearance in the meantime to ensure that the timelines provided under therules of procedure are complied with.

We have taken time to delve into this matter because we are of the considered opinion that the time has indeed come for this court to comment on the manner in which legal representation of state and para-statal interests are handled in our law courts. The quality of legal representation of these institutions leaves much to be desired.

Professionals of whatever type engaged by those to whom their services are required, need to offer dedicated, committed and competent services to those who engage them. There is a saying that ‘to whom much is given, much is expected.’ To have the privilege of being appointed as external Solicitors of the 1st Applicants is no mean responsibility but one that has to be discharged with diligence and competence.

Whilst we have not been happy with the quality of legal service that was rendered the 1st Applicants in the High Court which unfortunately led to the default judgment being granted against them, we note with appreciation the sentiments which were expressed by the Court of Appeal in the case of Agyeman v Ghana Railway and Ports Authority, Takoradi, (1969) CC 60, where the court in expressing its disgust in the conduct of a Solicitor in the Public Service whose conduct led to the grant of default judgment against a public entity, commented thus:

“We would like to make the point that lawyers engaged in the Public Service and who are called upon to represent public institutions in law suits have the responsibility to ensure that public funds are not improperly expended through their default, and that they must exhibit the same degree of diligence as is required of a private practitioner. There cannot be one standard of professional conduct for the lawyer in the public service and another for the lawyer in private practice.”

Under the circumstances of this case, there was absolutely no sound legal basis for the pursuit of the claims by the 2nd and 3rd Defendants against the Government of Ghana.
However, since I fully agree with the decision of my brother Date-Bah JSC not to grant the reliefs against the 3rd Defendant, basically because of jurisdictional reasons, I will echo his sentiments that once the matter is currently pending before other courts namely the Financial Division of the High Court and the Commercial Court, it is the expectation of this court that the principal actors in those cases would put up their best in the prosecution of those cases.

ROLE OF TRIAL COURTS IN ADJUDICATION OF CASES BEFORE THEM
The facts of this case disclose that, because of inaction on the part of the state’s Lawyers, default judgment was entered in favour of the 3rd Defendant against the 1st Defendant and this later metamorphosed into a consent judgment.

The duty of a trial court Judge or Magistrate is to ensure that cases brought up before them are not only legitimate, but based on sound principles of law.

In other words a trial court must ensure that claims brought before them are legal, constitutional, and based on pleadings.

A trial Judge or Magistrate, is not to accept, hook, line or sinker claims brought before it on the basis that the defendants have not put up a defence.

For example, if a company should institute a claim against the Government of Ghana for failing to pay for 100 three-bedroom houses in Dansoman which they were contracted to build for the Government, if indeed, this writ has been served on the relevant state Agencies and yet no defence has been filed, it will be illogical and unreasonable for the trial court to proceed to grant judgment to the plaintiff company purely on account of its pleadings alone.

In circumstances like this, it will be perfectly legitimate for the trial court, to interrogate the issues such as examining the contracts if any, evidence of the 100 three unit bedrooms houses being built and the fact of the houses having been built to specification etc.
There should be no indecent haste on the part of a trial court to rush to deliver judgment on account of default of pleadings. This is because, this court has had occasion to comment on apparent collusion that sometimes exists between plaintiffs and defendants. See unreported Supreme Court decision in Civil Appeal J4/23/2012 dated 6/6/2012 intitutled African Automobile – Appellant v The Attorney-General – Respondent where the President of this Court, Date-Bah JSC, in a unanimous decision of the court accepted and applauded the learned trial judge who despite attempts by the respondents therein to accept that there was a binding contract concluded that no contract had been formed on the basis of Exhibit A – (that was the contract documents in that case) and both the Supreme Court and the Court of Appeal affirmed the decision of the trial Judge, Torkonoo J (Mrs) as she then was.

It is therefore important that, trial courts must be on the alert, to prevent cases where collusion can occur and ensure that they act as watchdogs not only of the public purse but also protective of the rights of any person who appears before them. The courts of law established under the constitution 1992 must not be used by anybody or group of persons to unlawfully or illegally enrich himself or themselves to the disadvantage of any person or the state.

Trial Courts must as a control measure always ensure that claims or endorsements in actions brought before them especially where default applications for judgment arise are scrutinised thoroughly to prevent collusion and or abuse of the judicial system.
In this regard, even an ex-parte application, though one sided ought to be scrutinised by the court and must be granted only if it satisfies the conditions lawfully and legally required to be proven or established.

ROLE OF PLAINTIFF
The role of the Plaintiff, a distinguished former Attorney-General of this country needs to be highly commended as was done in the lead judgment.

I will only add that, there is indeed the need for civil society organisations or groups to come to the assistance of such a plaintiff. This is because from the plethora of documents filed in this case, I reckon that the plaintiff has been put to a lot of expense in all attempt to protect the interests of the state.

It is really sad, that during the conduct of this case, not a single civil society group or lawyers came to the assistance of the plaintiff. On the contrary because of personal attractions, it is not difficult to know where the attention of those who ought to be interested lay.

The plaintiff in my opinion must be highly commended for his vigilante role in protecting the wanton dissipation of the public purse.

Save for the above brief comments I fully agree with the judgment just delivered by my distinguished brother Date-Dah JSC.

The NDC government’s dismissal of Martin Amidu was Ghana’s gain. When the government thought that it had gotten rid of the irritating pain in its backside by firing Martin as Attorney-General, it only gave to Ghana, a reluctant hero and champion.

I do not agree with all of Martin’s positions, which is natural. But I must applaud his dogged, fighting spirit. In the face of the blatant stealing of this nations’ monies by a cabal with obvious official participation and complicity, the shameful and reprehensible cheering and defence of the stealing (notably by persons working in the office of the then President, at least one of whom has now been rewarded with a Ministerial appointment), the appalling and inexcusable ‘interim’ non-investigation by EOCO, and the shocking and scandalous lack of interest in prosecuting the civil recovery and the crime (until recently, and I must commend the current AG for this), many of us could only speak and write. NOTE: To date, the government had taken absolutely no step to recover the monies paid to Waterville!!

But Martin would not take all of that that rubbish lying down. He took it a step further. He went to court against Waterville, Woyome and the Attorney-General, at his own expense. Today, I sat in court when the judgment was delivered. I left in awe of the man. Some of his claims were upheld and others were dismissed. Yet the court, without any equivocation or prevarication, was unanimous and undivided in its high praise and commendation of Martin and his vigilante role.

I now turn to my summary of what I heard the court say.

The Unanimous Decision (9-0), by Dr. Date-Bah JSC

Waterville: the contracts entered into between the Government and Waterville, were unconstitutional since parliamentary approval was not obtained, in breach of article 181(5) of the Constitution for the international business transaction to which the Republic was a party. All payments made to Waterville (both after the consultants’ appraisal and after the alleged mediation) were therefore unconstitutional. They did not fall properly under the sparing circumstances under which a person whose contract is declared void for being in breach of the Constitution would be entitled to restitution. Waterville was ordered to refund all monies paid to if by the government, including the Euro 25 million paid to it by the government after mediation.

Woyome: the court dismissed the claims/reliefs sought against him on the ground that they did not raise any constitutional interpretation/enforcement issues under article 181(5), which would have properly trigger its exclusive and special jurisdiction. The key question affecting Woyome, is whether or not there was a contract between the Government and Woyome at all. Indeed, in Woyome’s own Statement of Claim in his action at the High Court, he does not show any contractual basis for his claim. Thus a determination as to whether or not there was a contract or a cause of action at all, is one that should be determined by the High Court, as it did not involve any constitutional issue for interpretation or enforcement.

Attorney-General: The court took note of the claims against the state’s legal representatives for their actions in the matter and stated that those claims, also, did not involve any constitutional issue for interpretation or enforcement, and as such dismissed them and advised the Plaintiff to pursue those claims before a High Court.

Conduct of named lawyers (particularly for Waterville and Woyome): The court referred Martin’s claims against the lawyers in the matter to the Disciplinary Committee of the General Legal Council and stated that the Plaintiff may continue his complaint in that forum. It ordered the SC Registry to serve a copy of its judgment on the GLC for further action.

Obiter, by Jones Dotse JSC:
This was the more dramatic and striking opinion. He concurred with the unanimous decision, but decided to read what he termed a “commentary.”

His Lordship pulled no punches, barred no holds and took no prisoners when he excoriated the lawyers who acted in the matter, particularly for Waterville and Woyome. He stated that there was sufficient evidence (particularly the now famous Tetteh & Co. letter) that there was no contract to be enforced, but that Waterville and Woyome had an “alliance to create, loot and share” Ghana’s resources. He noted how Waterville and Woyome (using different lawyers) were first opposed to each other, then started acting together using the same lawyer (Waterville’s lawyer) to recover the monies they received, and then before the Supreme Court, that same lawyer now only appeared as Waterville’s lawyer. He stated that there was no sound legal basis for their claims, and that the lawyers should have known this and advised their clients, instead of leading them in the matter.

Both Dr. Date-Bah and Dotse JJSC highly recommended Martin Amidu for his work. Dotse JSC pointed out that that Martin has had to fight alone without any help, especially from civil society.

My Conclusion: Martin has won; not for himself, but for Ghana. In the process, he has put us all to shame.

Introduction
I first heard about Asamani in primary school history, as the man who conquered the Christianburg (Osu) Castle from the Danes in 1673 and served as its Governor for a year. I do not know of any major monument that has been named after him, and he is definitely not as popular in Ghanaian folklore as, for instance, Asante Kings. The writings about him appear fractured and various writers give different accounts of what he achieved. It is from a few of these sources that I have pieced this together.

Who was Asamani?
Asamani was from Akwamu. In one version of the history, he was employed as a cook in the English forts in Accra and spent a lot of time learning the ways of the Europeans. Soon, he became an established trader in Accra, and was a broker for Akwamu traders who came to Accra to trade with the Danes, who owned and operated from the Castle.

His rise as a businessman coincided with strife between Akwamu on the one hand and the Gas and the Danes, on the other hand, over who should have control over trading on the coast. In the 1670s, Akwamu attacked Accra, but that was foiled by the Gas with the support of the Danes. The pride of the Akwamu King was irreparably bruised. He could neither forgive nor forget what had happened to him, and therefore sought ways to revenge his defeat. He commissioned the prominent Accra-based Akwamu businessman, Asomani, to put this plot into effect.

In another version of the history, Asomani was a troublesome and fierce general of the Akwamu army, who had led raids against the Ga, the Akyems and the Akwapims.

The Capture of the Castle
What is however clear is that it took Asomani some time to come up with a plan that would bring his King’s wishes to fruition. Asomani kept a keen and close eye on the Castle and in 1693, he determined that it was time to invade and capture the Castle. In that year, the Danish occupants of the Castle had been reduced by death and disease, and were in no position to offer any serious resistance to any invasion. That, to Asomani, was the best time to strike. He put together a fighting force of some 80 men, and disguised them as merchants who wanted to buy in arms. But they had concealed bullets in their cloth, and once they had been allowed entry into the Castle and given access to the armory to inspect the guns, they loaded the guns with the bullets. They turned the guns on the Danes, who quickly surrendered.

The Governor is said to have escaped, wounded to the nearby Dutch fort called Crevecceur. But according to Akwamu accounts, Asamani killed him. The remaining Danes were captured and sent to Akwamu as captives.

He hoisted his personal flag (a white flag with a black warrior insignia) over the Castle, and announced and installed himself as the “Governor of Christiansburg Castle.” He then extended friendship to all traders along the coast, irrespective of their nationality (especially the English and the Dutch). He had a peculiar love for guns and cannons and is said to have welcomed all ships approaching his Castle by firing the cannons. He is said to have entertained captains of trade ships to expensive, elaborate dinners, and he appeared at such dinners in the full dress of a Danish Governor.

The End of the Governorship
There are at least three versions of how his rule as Governor ended in 1694. In one version, he sold the fort back to the Danes for 50 marks of gold (worth about £300,000 today. In a second version, the Danes sent an expedition to capture the Castle, but the obviously scared expedition force could only camp at Fort Crevecceur and negotiate with the Governor from there. In yet another version, he was out-manoeuvred by his King, Basua, who took 100 marks of gold as a ransom for the captives and for the return of the Castle’ and then ordered Asamani to hand the Castle over to the Danes.

Without knowing which version is accurate, what is true is that in 1694, Asomani peacefully ceded the Castle to the Danes.

The New, Improved Asamani
What is significant (and is the key lesson), for me, is that Asamani did not slip into oblivion thereafter. He took full advantage of his newly-acquired status, wealth, friendships and contacts, and re-established himself as a successful business man at Labadi. He had kept all the money he made while as Governor, refused to pay reparations to the Danes, and invested that money in his new, expanding business. He remained a thorn in the side of the Danes by diverting a lot of business from the Danes to himself. The Danes are reported to have made at least one unsuccessful attempt to force him out of Labadi. When that failed, they put pressure on a new Akwamu King, Ado, who succeeded in forcing Asamani to move his business empire to Ningo. He eventually wound up his business, resettled in Akwamu, and in 1703, became a minor chief.

As a chief, he is said to have lived in some colour and style. He built a palace and mounted on it, his favourite cannon. Foreign visitors still came to pay him visits and homage, and with every such visitor, he would fire the cannon as a welcome. He became known for his prodigious use of gun powder. Somehow, after 1704, he disappeared from European records, and that is the last that we read of him, because this part of our history was written by the Europeans, who obviously lost interest in what he had become, a chief of a small town.

The keys to the Castle, which he seized when he invaded, are still in the Akwamu Palace.

http://akwamuman.org/test/index.php?option=com_content&view=article&id=78:asamani&catid=42:history&Itemid=29

http://books.google.com.gh/books?id=8seV5xexFHgC&pg=PA352&dq=asamani+akwamu&hl=en&sa=X&ei=XEe3UaE7geo4y8KBoA8&ved=0CC4Q6AEwAA#v=onepage&q=asamani%20akwamu&f=false

By definition, a Re-Examination is an examination of a witness after a cross-examination, by the lawyer who called him as a witness, upon matters arising out of such cross-examination.

I have come to believe that trial courts, judges and lawyers in Ghana are or have become so extremely intolerant of re-examination that re-examination is literally dying in our courts. The reality is that often, at the end of the cross-examination, the judges and lawyers and witness are all very tired. Everyone is in a hurry to either leave the court room or call the next case. Therefore there is very little interest in subjecting the witness to further time in the witness box. Often, the lawyer who called him as a witness and led him in the examination-in-chief is probably feeling too lazy to go back and go through the cross-examination to see whether there are any matters on which a re-examination would be required. It is also likely that that lawyer has spent the entire period of the cross-examination raising pointless objections over matters which he properly should be re-examining the witness on.

Thus in the vast majority of trials that I have witnessed, the words of counsel whose witness has just undergone cross-examination are “there will be no re-examination, My Lord.” And in almost every re-examination that I have seen, the counsel who just completed his cross-examination has objected to virtually every question asked in re-examination on the grounds that “there is no ambiguity with respect to the matter.” Mea culpa, I would admit. But I believe that the time has come for lawyers to begin to do a neater and cleaner job for clients at the re-examination stage.

The law that regulates what can or cannot be done in re-examination is captured quite cryptically in section 73 of the Evidence Act, 1975 (NRCD 323), with the side-note “Scope of re-examination,” and in the following words:

(1) Subject to the discretion of the Court, re-examination shall be directed to the explanation of matters referred to in cross-examination. (2) A witness cannot be re-examined or otherwise further examined as to the same matter raised by the examining party on a previous examination without the leave of the Court, but the witness may be re-examined or otherwise further examined as to a new matter upon which the witness has been examined by another party to the action.

In subsection (1), we are told that re-examination should aim at explaining matters that came up during cross-examination. Subsection (2) bars the lawyer re-examining from examining on matter that he had raised in his examination-in-chief, and states that any re-examination or further examination is limited to new matters that the witness has been cross-examined on. The rather well-researched and well-written official commentary explains that the law does not allow infinite rounds of questioning, and that the opportunity afforded by Re-examination “is essentially limited to new matters raised on cross-examination.”

In OKUDZETO v. COMMISSIONER OF POLICE [1964] GLR 588, the Supreme Court stated that the object of re-examination is to explain evidence given under cross-examination, and that it is not to be used to get a witness to deny or cancel evidence already given under cross-examination. That is why where a witness’s evidence under cross-examination is subsequently contradicted by him in re-examination, the whole evidence of the witness should be discredited by the trial court.

And in SEATEC LTD. v. PENTON HOOK FARMS LTD. & ANOTHER [1984-86] 1 GLR 605, the Court of Appeal held that where a question had been properly objected to and rightly upheld during examination-in-chief, it would be improper for counsel to attempt to ask the same question in re-examination. What was more, if the witness was not cross-examined on a matter he could not be re-examined on that matter, because it did not arise out of the cross-examination.

It is in the light of the above that a lawyer re-examining is not permitted to ask any question that does not arise out of the cross-examination. He also has no right to ask his own witness leading questions at this stage. He will not be allowed to waste time by asking over again questions already put in chief.

The above limitations do not detract from the general position of the law re-examination affords the witness an opportunity of explaining any seeming inconsistency in his answers in cross examination. The witness is allowed to state the whole truth as to any matter which was touched on, but not fully dealt with in cross-examination. Human memory is not perfect. And the pressure of undergoing cross-examination can lead to slips, faulty perception and erroneous memory. The purpose of re-examination is to fix these, because after all, the court is more concerned with doing justice than scoring points in cross-examination. It is therefore a very important tool that counsel who call witnesses must not treat, and must stop treating, as trifling.

THE RIGHT TO CROSS-EXAMINE IN A TRIAL BY AFFIDAVIT EVIDENCE

It is trite that the keystone of common law evidence is the reliance on confrontation and examination as a means for discovering the truth. Every party has an undeniable right to examine any witness who testifies at the trial of that action. Section 62(1) of Ghana’s Evidence Act provides that “at the trial of an action”, the witness must submit to examination by all parties who “choose to attend and examine.” The right to cross-examine is the right of the adverse party, and absent any extraordinary or extenuating circumstances, I do not see how a court can deny that right.

It is for this reason that section 62(2) provides the safeguard for circumstances where complete examination is denied. That is why the section gives the court the discretion to strike out testimony which has not been subject to complete cross-examination so as to meet the demands of fairness. In Mansah v. Nimoah [1961] GLR 511, the trial court failed to invite a party to cross-examine some 2 parties who testified. On appeal it was held that the evidence not having been subjected to cross-examination was “improper” and a judgment based on it could not stand. See Atuahene v. COP [1963] 1 GLR 448, where the court held that if a witness who has testified in chief is not available for cross-examination, the court should either expunge the testimony from the record or insist upon his appearance in court. The court is not entitled to act upon such evidence. The “Atuahene Principle” was cited and applied in Banda v. The Republic [1975] 1 GLR 52, where the court held that if a court itself precludes the right to cross-examine, then the question whether or not such denial occasioned substantial miscarriage of justice would depend on factors such as the nature of the cross-examination sought. Atuahene was also cited and applied by the Court of Appeal in Laryea v. Oforiwah [1984-86] 2 GLR 410, where the court re-stated the right of a party to test, under cross-examination, the veracity and accuracy of the evidence-in-chief given by a witness, and that if he is denied that opportunity, then the whole of the evidence given by that witness ought to be expunged from the record.

Thus where a court determines that the mode of testimony in a trial is by affidavit evidence, the evidence proffered by the affidavit is effectively the evidence-in-chief of the deponent (i.e. the person who swears that affidavit.) The deponent is therefore a witness in the trial. Then it would stand to reason that it is the right of the adverse party to decide which of the deponents that it would want to cross-examine. Note that it is risky for a party to choose not to call and cross-examine a deponent/witness, because that party would be deemed to have waived the right to impugn the testimony contained in the affidavit on the grounds that it has not been tested by cross-examination.

Taking evidence by affidavit is neither new nor strange. The High Court Rules provide specifically for it, and maybe there is something to be learned from there. Under those rules, the High Court may order evidence to be given by way of an affidavit of a witness being read at the trial. This rule is usually of much value when the witness is abroad (at the time) or the evidence will not be contested. A draft of the proposed affidavit should be submitted for the consideration of the other side before the application. Thus it is not practicable to make such an order where the evidence will be strongly contested and its credibility will depend on the court’s view of the witness. It should be noted that in the High Court, the court may refuse to act on an affidavit where the deponent cannot be cross-examined and if the deponent does not attend for cross-examination where notice to cross-examine has been given, the affidavit cannot be read in his absence without leave. See the English cases of Dunne v. English (1874) LR 18 Eq 524, Bingley v. Marshall (1862) 6 LT 682 and Shea v. Green (1886) 2 TLR 533.

It would truly be novel if a court denies a party’s request to cross-examine a witness, under any circumstances

One of the consequences of the current TV and radio broadcast of the Presidential Election Petition is that people are talking about the case. It doesn’t appear as if anyone is interested in stopping it. And they are not just talking; they are criticising the parties, the lawyers and even the court. Such free unhindered commentary on a pending case is unprecedented in our legal history. Note that thus far, no one has cited anyone for contempt. Is it the case that anyone who makes such an application will be laughed out of the court? Literally, almost everyone is guilty of contempt where this case is concerned.

I am convinced that one of the laws that the current TV broadcast of the Presidential Election Petition should change forever is the law on CONTEMPT OF COURT. And it might be time to consider legislation to regulate the application of the law of Contempt of Court, to move away from its current conservative and narrow application. We don’t have a choice. The live coverage must broaden the bounds of public commentary on pending cases.

Let’s start from the general principle. The court has a general power to punish contempt by committing the offender. The underlying object and purpose of the law of contempt is to maintain the right of the citizen to a fair and unimpeded system of justice and to protect orderly administration of law. The due administration of justice requires unhindered access of all citizens to the court, justice free from bias and no usurpation of the function of the court to decide according to law.

There are generally two classifications of contempt: civil contempt (i.e. conduct involving a breach of a court order) and criminal contempt (refers generally to other conduct which interferes with the due administration of justice).

But of particular interest to me this morning is the latter, CRIMINAL CONTEMPT. It generally refers to words or acts that obstruct or tend to obstruct or interfere with the due administration of justice. It also has two manifestations:

(i) Contempt in facie curiae – i.e. contempt in the face of the Court: this is not confined geographically to the courtroom. It refers to any word spoken or act done in or in the precinct of the court, which obstructs or interferes with the due administration of justice or is calculated to do so, e.g. attempts to interfere with witnesses, assaults in court, insults to the court, interruption/disruption of court proceedings, RECORDING, FILMING, PHOTOGRAPHING OR SKETCHING IN COURT WITHOUT THE COURT’S PERMISSION, disobedience to a subpoena, refusal to be sworn and/or answer questions; and

(ii) Contempt outside the Court: words spoken/published, or acts done outside the court, intended or likely to interfere with/obstruct the fair administration of justice. This applies to acts that interfere with or obstruct persons having duties to discharge in a court or officially connected with court proceedings (e.g. bailiffs), obstructing the process of court, assisting in the breach of an injunction or undertaking. ALSO COVERED ARE PUBLICATIONS INTENDED OR LIKELY TO PREJUDICE THE FAIR TRIAL OR CONDUCT OF PROCEEDINGS, PUBLICATIONS WHICH PREJUDGE OR PRE-EMPT ISSUES IN PENDING PROCEEDINGS, and publications which scandalize or otherwise lower the authority of the court.

Should this still be the law? Trust me, I believe that this telecast/broadcast is gonna change a lot of things in this country.

Précis: The limitations that have been placed on physical access by the public to the Presidential Election Petition proceedings in Ghana, without providing real time electronic access by way of Radio, TV and YouTube, are unconstitutional.

Although I have wished to follow the Presidential Election Petition closely, I have only been able to make it to the court room once, the day the NDC joinder application was heard. Try as I can, I just have not found the time to attend. On the day that the application by 100s of potential intervenors was to be heard, I completed my court work early and had about an hour to kill before returning to the office. When I inquired, the Supreme Court had not started sitting yet and so I thought that I would spend that hour listening to some of the arguments.

To my surprise, a policeman at the foot of the stairs informed me, very politely, that I would not be allowed to enter the Supreme Court because I did not have “accreditation.” I could not believe it. Just the previous day, I had spent about 4 hours in the same court room before my case was heard, and I was not required to produce the now all-important “accreditation”! But now I was told that as a citizen of this country and an officer of the Court, I did not have the right to observe those proceedings without something called an “accreditation.” I was therefore not surprised when a lawyer for the proposed intervenors, Stephen Ahor, Esq., was reported to have later informed the court that his clients were not allowed into the court room. That had to be true. In effect, even people who had an application before the Supreme Court in the same Election Petition, required the hitherto unknown “accreditation” to be able to participate in the proceedings of the day. Also lawyers, technically officers of the court, now require this “accreditation.” What is worse, the people of Ghana, whose monies are funding the proceedings, are denied access to the court room without this “accreditation.”

I may understand why there is restricted access to the Supreme Court. But in my view, this is by heads and shoulders, leaps and bounds, the most important case in Ghana’s history. The people of Ghana are, rightfully, interested in knowing what is happening. They have a right to follow the proceedings, minute-by-minute. But the court room cannot accommodate more than 100 people in the public gallery, I think. Thus the restricted access may make sense.

As an “officer of the court”, I could have resolved my personal restriction very easily by simply obtaining the “accreditation”. But I don’t want it. I believe that every Ghanaian who wants to see those proceedings in real time has a constitutional right to it. It would be extremely selfish on my part to exploit my position as a lawyer to obtain the “accreditation” while the vast majority of Ghanaians who own the court building and whose tax monies fund the operation of the court are denied that access. I therefore decided, there and then, that I would not and will not apply for the “accreditation”. I will stay outside the court room and instead, do my little to ensure that every Ghanaian who wants to see what is happening, and is not satisfied with having to depend on the notes of reporters from the media, is given that access by the simplest and most sensible means of access – live radio and television and internet (YouTube).

A combination of factors renders, in my respectful view, the current “accredited entry” policy unconstitutional, unless it is combined with, easily, the simplest way of allowing Ghanaians to exercise their constitutional right to follow the proceedings in real time. Ghanaians have a right to hear the testimony and arguments without having to rely on press reports. Indeed, one is not even allowed to enter the Supreme Court with even a telephone or other electronic device. That means that we are compelled to rely on the handwritten court room notes of reporters, many of whom are not lawyers. With utmost respect to the Judicial Service, it is wrong to compel all and sundry, including lawyers, to depend on press reports, in a matter of this significance and magnitude.

Article 126(3) of the Constitution states:

Except as otherwise provided in this Constitution or as may otherwise be ordered by a court in the interest of public morality, public safety or public order, the proceedings of every court shall be held in public.

This provision is repeated in section 102 of the Courts Act. For very good reasons, section 39 of the Matrimonial Causes Act provides that “the court may direct that any proceedings under this Act be heard in private and may exclude all persons except officers of the court, the parties and their witnesses and lawyers where the court is satisfied that the interests of the parties or the children of the household so require.” (See also Order 65 Rule 20(1) of the High Court (Civil Procedure) Rules). In Order 50 Rule 3, specific provision is made for the hearing of some contempt applications in chambers.

These are some of the know exceptions to the rule. But the meaning of the constitutional phrase “every court shall be held in public” is too trite to admit a trifling debate on definitions. Suffice it to say that it requires trial in open court where all parties and witnesses testify in a public courtroom, and lawyers publicly present their arguments to the court. It is the opposite of “in camera proceedings” where the public is not admitted to hear a case, or portions of cases.

But the key right created by article 126(3) is the right of litigants and the public to trial in open court. In other words, the public must have access to all court proceedings, except the Constitution states, or court itself decides, otherwise, on the grounds specifically stated in article 126(3). Further, the constitution says it is only the court that is hearing the matter that can impose restrictions on those grounds.

To the best of my knowledge and information, the Supreme Court itself has not decided to restrict access to the Presidential Election Petition proceedings. In this case, there is a restriction of access to the court room imposed, not by a judicial decision (as required by article 126(3)), but by the administrative fiat of the Judicial Service. As stated, that may make sense, considering the limited seating capacity of the court room. We cannot move the court to sit at the Accra Sports Stadium or the National Theatre. That is why basic, yet creative re-thinking is required, so that the public will still have access to the proceedings, even if it is not physical access, and so that the letter and spirit of article 126(3) may still be complied with and achieved. That, in my view, is achieved by giving us the opportunity to have that access by way of live radio and TV, and in the 21st century, by YouTube.

If that does not happen, my respectful view is that the current proceedings are being conducted in flagrant breach of article 126(3). The ban on physical access by the public to the proceedings, without a concomitant provision of electronic access to the proceedings is clearly unconstitutional.