Wednesday, November 25, 2009 (Page 31)
THE Commercial Court hearing the litigation involving the sale of Ghana Telecom (GT) (now Vodafone) has referred three issues on the constitutionality or otherwise of the sale of Ghana Telecom to the Supreme Court for determination.
The issues set out by the trial judge, Mr Justice Henry Kwofie, include whether or not aspects of the Sale and Purchase Agreement (SPA) dated July 3, 2008 and executed among the government of Ghana, Vodafone International and Ghana Telecom contravenes the 1992 Constitution and, therefore, renders the agreement void.
Also referred was the issue on whether or not any procedural, substantive errors and defects in the SPA were or can be cured through parliamentary ratification.
The third issue referred for determination by the Supreme Court was whether or not an agreement executed by government and ratified by Parliament could be challenged at the High Court.
The presiding judge, who is currently on leave, will set out other issues for trial in the substantive case when he resumes.
On October 23, 2009, Mr Justice Kwofie decided to refer aspects of the suit which bordered on the constitutionality or otherwise of the sale to the Supreme Court for interpretation, with the explanation that it was the sole preserve of the Supreme Court to interpret issues bordering on the Constitution.
He, accordingly, ordered the Attorney-General and GT to furnish the court with a copy of the SPA on GT.
The plaintiffs in the matter, Professor Agyeman Badu Akosa and five others, sued the Attorney-General and Minister of Justice, Ghana Telecommunications Company Limited and the Registrar General over the sale of GT to Vodafone.
The other plaintiffs, who are all members of the Convention People’s Party (CPP), are Mr Michael Kosi Dedey, Dr Nii Moi Thompson, Naa Kordai Assimeh, Ms Rhodaline Imoru Ayarna and Mr Kwame Jantuah and they are calling for a declaration that the sale of GT is inimical to the public interest.
They are, therefore, seeking reliefs from the court, including a declaration that the agreement entered into by the government was not in accordance with due process of law and is, therefore, a nullity.
They are also seeking an order declaring that the forcible grouping of autonomous state institutions established by law — Voltacom, Fibreco, VRA Fibre Network and VRA Fibre Assets — with GT to form the purported Enlarged GT Group was unlawful and, therefore, void and of no legal effect.
The plaintiffs are further praying for an order of perpetual injunction to restrain the government from disposing of its 70 per cent share of GT to Vodafone or any other foreign company without first exploring avenues for funding and better management in Ghana, among others.
They contend that the SPA entered into among the Government of Ghana, GT and Vodafone for the sale of 70 per cent of GT for $900 million was against the public interest and constituted an abuse of the discretionary powers of the government.
The plaintiffs said they were opposed to the unlawful establishment of the said Enlarged GT Group, as it undermined the sovereignty of the country and endangered the national security of Ghana.
According to them, the decision of the government to transfer the assets, properties, shares, equipment, among others, to Vodafone was obnoxious, unlawful and inimical to the public interest, particularly when no consideration was required to be paid by Vodafone for the stated assets, among others.