Tuesday, June 26, 2012

"Commercial Court has jurisdiction to hear review motion"

May 1, 2012 (Page 22) THE Commercial Court in Accra on April 30, 2012 ruled that it had jurisdiction to hear the State’s motion praying it to review GHC500 cost it awarded against it for failing to start a civil case between it and a businessman, Alfred Agbesi Woyome. It, however, decided to stay proceedings in the hearing of the application pending the outcome of an appeal Woyome has filed against its decision which allowed the state to introduce fresh evidence. The court on March 26, 2012 awarded the GHC500 cost against the State after it failed to commence hearing of the civil matter as directed by the court. Discontented with the GHC500 cost, the state filed the motion praying the court to review its decision but one of the lawyers for Woyome, Mr. Sarfo Buabeng, argued that the state filed the motion under the wrong rule. He submitted that the Court of Appeal was the appropriate forum for hearing of such motions and accordingly prayed the court to strike out the motion. However, the court, presided over by Ms. Justice Barbara Ackah-Yensu, held a different view and stated that it had jurisdiction to hear the motion for review of the cost it awarded against the state. Meanwhile, the Court of Appeal has adjourned sine die, an appeal against the Commercial Court’s decision to grant the state leave to file additional issues of fraud against Woyome to enable parties in the matter to serve the necessary papers in the case on each other. In the substantive appeal, Woyome said, although, the state had instituted the legal action in July 2010, it “went to sleep until January 16, 2012, when it filed a motion on notice for leave to amend by substitution the amended writ of summons and the accompanying amended statement of claim.” According to his lawyers, the trial judge erred in law in granting the state the permission to introduce evidence of fraud almost two years after the state had filed a suit to retrieve moneys paid him. According to Woyome the state could raise the issue of fraud but argued that the state could not raise any other issue or relief of which will re-open matters concluded in the consent judgement resulting in the payment of the GHC51.2 million to him. He said it was, therefore, wrong in law for the court to allow the state to re-open issues which had already being tackled in the consent judgement. In his supporting affidavit, Woyome argued that “in an action charging fraud, it would be a clear impropriety for the plaintiff (state) to re-open its case.” Woyome, who is currently standing trial at the Financial Division of the Fast Track High Court for fraud is accordingly praying the Court of Appeal to stay proceedings at the Commercial Court pending the outcome of his appeal. The state on July 20, 2010 filed an application claiming an agreement it reached with Woyome regarding the payment of GHC51.2 million was a mistake. It, however, stayed dormant until January 2012 when it filed additional issues praying the court to allow it to introduce allegations of fraud against Woyome. The court granted the state’s application on February 29, 2012 but awarded GHC2,000 against it for delaying the matter. The Attorney-General (A-G) is currently in court seeking an order for the refund of the judgement debt of GH¢51,283,480.59 paid to Woyome because it was procured by fraudulent means. Among the reliefs contained in the writ filed at the Registry of the Commercial Division of the High Court, Accra, on Monday, January 16, 2012 is a declaration that the terms of settlement filed on June 4, 2010, to the effect that Mr Woyome should be paid the sum in three equal instalments of GH¢17,094,495.53, were procured by mistake on the part of the A-G and due to fraudulent misrepresentation by Mr Woyome. Additionally, the A-G is seeking a declaration to set aside the consent judgement of the court on the grounds that Mr Woyome had no contract with the government and consequently lacked a cause of action and the capacity to make the said claim in any court of competent jurisdiction among others. In his amended statement of defence and counter-claim, Woyome has denied that the negotiation of the judgement obtained by him on May 24, 2010 was arrived at by mistake on the part of the A-G and that after he had obtained the judgement, he was invited by the A-G to a meeting on May 27, 2010. As a result of meeting, an agreement was reached that the judgement debt be steeled by the payment of GH¢41,811,480.59 as the judgement debt of five million euros or its cedi equivalent. The amount represented half of the interest awarded by the court and costs of GH¢25,000. END.

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