Thursday, February 28, 2013

Case against A-G, IGP struck out

 February 28, 2013 (Not published)

THE Supreme Court today struck out a writ which prayed it to declare as unconstitutional, the re-arrest of persons by the police immediately they are discharged by a court.
According to the court, the case had merit but it could best be handled by the Human Rights Court.
The court advised the plaintiff to re-strategise because the issues raised were not to be swept under the carpet.
The plaintiff, Eric Delanyo Alifo, a lawyer and Executive Director of Help Law Ghana through his solicitor, Mr Augustines Obour, had filed the writ praying the court to declare as unconstitutional a popular practice by the police where discharged accused persons were re-arrested and put before another court on the same offences.
He had also prayed the court to declare as illegal, the practice where police officers served as independent witnesses while suspects gave their statements to police as well as the practice where lawyers were denied private conference with their clients, who were in custody.
The respondents in the case were the Attorney-General and the Inspector General of Police (IGP).
But the court, in dismissing the application after the applicants had withdrawn it, held that the issues raised by the applicant were human rights issues which could be handled by the Human Rights Court.
 The court also held that the issues raised by the applicant were too generalised, and accordingly advised the applicant, to narrow down on a particular case or two to be used as references.
While commending and expressing appreciation at the efforts of the applicant to seek the court’s intervention in addressing pressing issues, the court said it would not entertain matters which did not need constitutional interpretation.
The court was presided over by Mr Justice William Atuguba with Mrs Justice Sophia Adinyira, Mrs Justice Rose Owusu, Mr Justice Annin Yeboah, Mr Jones Dotse, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo as panel members.
The applicant had conceded that the issues raised did not need constitutional interpretation after the court had raised a number of questions.
 Mr Obour later informed journalists that his client based his case on the re-arrest of accused persons after they had been discharged by a court of competent jurisdiction, and their subsequent re-arraignment before another court on the same offences on Article 14 of the 1992 Constitution, which guarantees the liberty of persons.
On the issue relating to police officers serving as independent witnesses, counsel said Section 120 of the Evidence Act allowed that but a current Supreme Court decision had nullified that procedure.
He cited Kwaku Frimpong versus the Republic as the case in which police officers had been barred from serving as independent witnesses.
 Writer’s e-mail: mabel.baneseh@graphic.com.gh.

Akufo-Addo's petition lacks merit - Prez Mahama declares

February 28, 2013 (Page 16 & 22)

 PRESIDENT John Dramani Mahama has said the petitioners challenging his declaration as the winner of the December 7, 2012 polls have failed to provide evidence on how the election results were tampered with.
He said despite the orders of the Supreme Court dated February 5, 2013 and directed at the petitioners to provide him with particulars of the manner in which the results of the presidential election were tampered with, the petitioners had “refused to do so”.
In a response to the amended petition dated February 26, 2013, President Mahama denied claims of irregularities and accordingly prayed the court to dismiss the entire petition, “since it lacks merit”.
In a response filed on his behalf by his lawyer, Mr Tony Lithur, the President said it was acknowledged by all observers, domestic, as well as international, that “the conduct of the elections had been generally free, fair, as well as transparent”.
The petitioners, the presidential candidate of the New Patriotic Party (NPP) in the December 2012 elections, Nana Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, had, in their December 28, 2012 petition, called for the annulment of votes cast in 4,709 polling stations but amended their petition on January 31, 2013 and cited 11,916 polling stations as the total number of polling stations where alleged irregularities were recorded.
They had initially called for the cancellation of 1,342,845 valid votes cast during the election at 4,709 polling stations due to what they termed “gross and widespread irregularities” recorded during the elections but are now praying the Supreme Court to pronounce an additional 3,327,659 valid votes cast during the elections as invalid.
The Supreme Court, on January 5, 2013, granted the petitioners’ prayer of amendment and accordingly allowed the amendment, thereby making 11,916 polling stations the official figure in the court’s records.

President’s response
According to President Mahama, to the knowledge of the petitioners and their polling agents, results were declared at the various polling stations after “painstaking public and transparent sorting and counting and/or collation (and sometimes recounting) at the various polling stations and collation centres, with the full participation of first petitioner’s accredited agents, who did not protest the declared results at the time of their declaration”.
He said the “petitioners’ allegations are brazen with attempts to find excuses for losing the 2012 presidential election”, adding that it was also not true his votes were illegally padded, while those of Nana Akufo-Addo were unlawfully reduced.
The answer to the amended petition also stated that the results declared at all polling stations across the country, as reflected in the pink sheets, were the product of “properly supervised elections in which the petitioners and the NPP, their political party, their polling/or counting agents participated and that in all cases voting was done on the basis of biometric voters register, made available to all political parties prior to the elections”.
In response to claims that the EC failed to provide the NPP with the provisional register of voters in accordance with Regulation 21 (2) of the Public Elections (Registration of Voters), Regulation 2012 (C.I. 72), thereby disabling the petitioners and their party from effectively verifying the names on the list to ascertain their authenticity, President Mahama said the EC made available copies of the voters register to the NDC and the NPP.
He accordingly held that, “there was no unequal treatment” on him, the NDC, the NPP as well as the petitioners and other political parties, “regarding the materials that were made available to them by the second respondent prior to, during or after the elections.”
On allegations that, although, a common register was compiled for both the presidential and parliamentary elections, the total number of registered voters in respect of the presidential election exceeded that of the registered voters for the parliamentary elections by 127,210 voters; the President said to the best of his knowledge and belief, a common register was used for both elections,” and accordingly described the allegations as “clearly false and disingenuous”.
President Mahama refuted allegations that Superlock Technologies Limited (STL) allegedly harboured him, while intercepting faxed results of the elections.
Describing the accusations as “completely false,” he said the attack on the STL offices was “one of the many instances of wanton violence and destruction by NPP supporters during the election and the period after the declaration of the results.”
“Upon receiving information of the attack on the offices of STL, a combined team of representatives of political parties including the NPP, led by Honourable Osafo-Maafo, with their respective information technology experts and the National Peace Council went round and inspected the premises of STL during which visit, it was found that the allegation that the STL was receiving and/or intercepting results of elections before transmitting them to second respondent’s strong room was completely false,” the President’s answer to the amended petition stated.
On the petitioners’ claim that the EC on December 9, 2012 declared the total number of registered voters as 14,158,890 instead of the 14,031,680, the EC had originally furnished political parties with, thereby, showing a disparity of 127,097; the President said that was not true, adding that in any case that had no bearing on the total number of votes cast as well as “wholly irrelevant” to the outcome of the election and present petition.
The answer to the amended petition further contended that the suggestion by petitioners that there were some veiled reasons for the difference between 13,917,366 and the final number of registered voters smacked of utmost “bad faith”.
It said, “assuming without admitting” that some polling stations had the same code numbers, that fact alone would not invalidate the declared results of supervised elections in those polling stations and the votes validly cast.
President Mahama refuted the assertion that 4,670,504 votes had been rendered invalid and must, therefore, be annulled by the Supreme Court on the grounds that, “the statements and calculations contained therein completely lack any basis in law/or fact and should be wholly rejected by the Honourable Court.”
“Anyhow, the results of the presidential elections declared by the second respondent were based on the exercise of the fundamental rights of Ghanaian eligible voters under Article 42 of the 1992 Constitution,” the President said.
In any case, the President stated that quite apart from fingerprint verification, there were other methods of verification permissible under the law and, therefore, the inability of some eligible voters to undergo fingerprint verification, through no fault of theirs, could, therefore, not form the basis for depriving such voters of their fundamental rights under Article 42 of the 1992 Constitution.
The President affirmed that any electoral laws and/or directives, the effect of which would be to invalidate the votes of such persons, who had properly presented themselves at polling stations to vote, and had been duly identified as registered voters in the biometric electoral register, would be inconsistent with Article 42 of the Constitution, and therefore, unconstitutional.”
According to the President, the results of the election were publicly declared at the various polling stations and constituencies and were matters of public knowledge, adding, “the results were the product of painstaking, public and transparent sorting and counting and/or collation (and sometimes re-counting) at the various polling stations and collation centres with the full participation of the petitioner’s accredited polling and/or counting agents, and those of other contesting political parties, who certified such results by appending signatures to the declaration forms.”
On allegations that all irregularities and electoral malpractices were a deliberate, well-calculated and executed ploy to unlawfully assist the President to win the elections and thus subvert the sovereign will of the people, the President said, it was rather the petitioners who were by the present petition, seeking to subvert the constitution, undermine the integrity of the EC and the whole electoral system and the “sovereign will of the people of Ghana by demanding from the Honourable Court an order annulling the results of the exercise of their fundamental rights under the Constitution.”
The President intends to cite the reported cases including Tehn Addy v Electoral Commission [1996-97] SCGLR 589; Apaloo v Electoral Commission [1996-97] SCGLR 253; Election of the First President, In Re: Appiah v Attorney General [1969] 2G&G 530; Tuffuor v Attorney General (1980) GLR 637; Fenuku v John Teye [2001-2002] SCGLR 985; Buhari v Obasanjo 9 2005) 2NWLR (pt. 910) 214; Re Agyepong (Decd): Poku v Abosi and Another [1982-83] 2GLR 475 to prove his innocence.
The President also plans to rely on the 1992 Constitution and other statutes including: The Presidential Elections Act, 1992, PNDCL 285; The Public Elections (Registration of Voters) Regulations, 2012, (C. I. 72); The Public Elections Regulations, 2012, C. I. 75; The Supreme Court Amendment Rules, 2012, (C. I. 74) and The Evidence Act, 1975 (NRCD 323) and to affirm his position that he was the truly elected candidate in the December 7, 2012 elections.

NDC’s response to amended petition
In another development, the NDC has also responded to the amended petition filed on February 26, 2013 at the Supreme Court registry.
In its response, the NDC argued that the “particulars of the categories of alleged irregularities set out by the petitioners clearly overlap, and, therefore, adding the votes in these categories as the petitioners have done, amounts to double/multiple counting and is part of a pattern of obfuscation resorted to by petitioners to create an appearance of a real issue when there is none.”
It said it won the elections in eight out of 10 regions in the country and further argued that, “in bringing this petition before the honourable court, petitioners are acting in bad faith and that the petition is frivolous, vexatious and an abuse of the this honourable court.”
“The results of the parliamentary elections that were also held on the same days were announced by officials of second respondent in the various constituencies and showed that the third respondent won 148 out of 275 seats in Parliament, thus attaining a clear majority, and that the NPP won 123 seats,” the NDC said in its response filed on its behalf by Law Trust Company.
“Members of Parliament, including those who stood on the ticket of the New Patriotic Party, have taken up their seats in Parliament,” the NDC’s response pointed out adding, “petitioners cannot consistently claim that the presidential elections were conducted irregularly, in respect of voter verification, for instance, while acknowledging the validity of the parliamentary elections on the basis of which members of parliament from their party have taken their seats in Parliament.”
The NDC, on whose ticket President Mahama stood for the elections held that polling agents representing the various presidential candidates including Nana Akufo-Addo “were present at the various polling stations and participated fully in all aspects of the process with a view to ensuring that the elections were free, fair and transparent”.
“Petitioners, through the acts of their polling agents at the various polling stations as well as acts of other representatives, clearly acknowledged that the presidential elections were validly conducted and claims to the contrary now by petitioners are an afterthought and in bad faith and cannot be countenanced,” the party held.
According to the NDC, the only point the petitioners began contesting the results of the election was long after vote counting at polling stations throughout the country in the presence of their polling agents when the tallies in the presidential election began to show that Nana Akufo-Addo had lost the election.
The NDC maintained that voters went through a process of verification, and had their identity checked before casting their votes, adding, “the agents of the first petitioner who were present at all polling stations including the 11,916 polling stations were satisfied with the verification process and is belated.”
It said the unclear and unsubstantiated allegations of illegal votes in the petition, were an “attempt by the petitioners to deny certain Ghanaians of their constitutional right without any justification”.
It further buttressed its point by stating that the Coalition of Domestic Election Observers (CODEO) which represented various professional bodies in the country used its well-established methodology for verification of results and thus confirmed the tally of the EC which declared President Mahama as the winner of the polls.
The party also cited media houses as keeping regular tally cards from various polling stations around the country and “reported tallies consistent with that of the second respondent.”
The party further indicated that prior to the declaration of the results on December 9, 2012, the EC gave the petitioners’ party the opportunity to prove allegations of irregularities in the presence of members of the Peace Council “and after consideration, the second respondent found no reason to defer announcement of the election results and proceeded with the said announcement.”
According to the NDC, spokespersons of the petitioners and those of the NPP had given different figures by which they claimed the votes of President Mahama had been illegally inflated “without ever giving a meaningful account of how this occurred.”
The NDC applied for a joinder three days after the filing of the petition and after legal battle between the lawyers for the NDC and the petitioners, the Supreme Court on January 22, 2013 gave the NDC the nod to join the petition.

Legal authorities
The party intends to rely on the Evidence Act, 1975 (NRCD 323); the 1992 Constitution; the Political Parties Act, 2000 (Act 574); the Public Elections (Registration of Voters) Regulations, 2012 (C.I. 72); the Supreme Court, Amendment Rules, 2012 (C.I. 74); the Presidential Elections Act, 1992, PNDCL 285 and the Elections Regulations, 2012 (C.I. 75) to make its case.
The party also intends to cite three reported cases to uphold its position that its candidate won the December 7, 2012 presidential elections.
The General Secretary of the NDC, Mr Johnson Asiedu Nketiah, swore an affidavit in verification of the NDC’s answer to the amended petition.
Writer’s e-mail: mabel.baneseh@graphic.com.gh

Three in court for defrauding energy company

 February 28, 2013 (Page 3 Lead)

THREE persons, who allegedly defrauded an energy company of GHC180,000 under the pretext of selling an abandoned filling station have been remanded in custody by the Accra Circuit Court.
The accused persons -  Hammeh Senare, a parliamentary candidate of the People's National Convention (PNC) in the 2012 general election, Kojo Opoku, a carpenter and Ernest Kofi, trader were remanded to reappear on March 11, 2013.
They pleaded not guilty to two counts of conspiracy to commit crime and defrauding by false pretence.
The presiding judge, Mr Francis Obiri, decided to remand the accused persons to prevent them from interfering with investigations.
At the court’s sitting in Accra yesterday, the prosecutor, Chief Superintendent Duute Tuaroka, prayed the court to remand the accused persons since investigations had not been completed.
However, counsel for the accused persons, Mr Emmanuel Bright Akoto, pleaded with the court to grant his clients bail on grounds that the charges upon which his clients were being held were bailable.
According to counsel, his clients had fixed places of abode and would be available to stand trial, but the court declined to grant counsel’s prayer.
The Madina Police picked up the three accused persons for allegedly defrauding the company, Omega Energy Limited of GH¢180,000 under the pretext of selling to  the company an abandoned filling station at Dome, but it later turned out that the said filling station belonged to another person not connected to  the accused persons.
Writer’s e-mail: mabel.baneseh@graphic.com.gh

Prosecution fails to produce witness in Woyome trial

February 13, 2013 (Page 3 Lead)

The state has, for the third consecutive time, failed to produce a witness in the trial involving a businessman, Alfred Agbesi Woyome, who is accused of defrauding the state to the tune of GH¢51.2 million.
A Chief State Attorney, Ms Cynthia Lamptey, yesterday told the Financial Division of the Fast Track High Court that the state's witness  was out of the jurisdiction and had promised to be in the country on February 23,  2012.
Ms Lamptey, therefore, pleaded with the court to adjourn the matter to February 28, 2013 to enable the prosecution to have conference with its witness.
The court, presided over by Mr Justice John Ajet-Nasam, obliged and adjourned the case to February 28,  2013.
At the court’s sitting on January 28, 2013, Ms Lamptey informed the court, “We should have brought a witness, but circumstances beyond our control made it impossible to do so.”
She, therefore, pleaded with the court to give the prosecution two weeks to produce a witness to testify on behalf of the state.
The trial judge obliged, making it the third time the prosecution had failed to send a witness to court five weeks after its fourth witness had testified in the matter.
Although yesterday marked the third time the prosecution had fallen short of bringing a witness to court, Ms Lamptey gave an assurance to the court that a witness would be in court at the next hearing.
Woyome was in court, together with his lawyer, Mr Osafo Buabeng.
A fourth prosecution witness, Ms Yvonne Quansah, who is stationed at the Financial Sector Division of the Ministry of Finance and Economic Planning (MOFEP), testified on December 19, 2012.
Ms Quansah, who has since been discharged for completing her evidence in the trial, told the court that Vamed Engineering, which was represented by Woyome, was shortlisted, together with other companies, for the construction of stadia for CAN 2008.
Woyome is facing two counts of defrauding by false pretences and causing financial loss to the state.
The accused, who has denied any wrongdoing, is alleged to have made fraudulent claims to the government, resulting in the payment of GH¢51.2 million to him.
The three other prosecution witnesses who have testified in the matter are a Deputy Head of the Legal Department of MOFEP, Mrs Mangowa Ghanney; a former Minister of MOFEP, Mr Yaw Osafo-Maafo, and a former Deputy Minister of Finance, Mr Kwaku Agyemang-Manu.
Writer's e-mail: mabel.baneseh@graphic.com.gh

2 Cocaine suspects remanded

 February 27, 2013 (Page 49)

The Accra Fast Track High Court, presided over by Mr Justice Mohammed Habib Logoh, Tuesday remanded into custody the two Nigerians who were picked up for allegedly importing into the country 200 kilogrammes of cocaine.

The alleged owner of the drug, Chief Sunny Ekechukwu Benji Eke, a 53-year-old Nigerian businessman, was remanded together with an alleged accomplice, James  Elekechukwu, 47, a second-hand clothes dealer in Accra.

They are to reappear on March 12, 2013. 

The two have been charged with two counts of engaging in criminal conspiracy and importation of a narcotic drug, while Elekechukwu faces an additional charge of possession of a narcotic drug.
Their pleas were not taken.

The seizure of the drug, said to have a street value of $12 million, has been described as the largest in recent years at the Tema Harbour.

It was concealed in a 40-footer container filled with 1,946 boxes of shampoo imported from Bolivia in South America.

NIB to appeal against court ruling


 February 25, 2013 (Page 3)

THE management of the National Investment Bank (NIB) has indicated its intention to appeal against a judgement of the Commercial Court in Accra which ordered it to pay $60 million to a UK firm.
It also plans to file for an order of stay of execution of the judgement, which was delivered by Mr Justice Amadu Tanko in favour of the plaintiff, Dominion Corporate Trustees Limited, a UK-based offshore company, on Thursday, February 21, 2013.
The court ordered the NIB to pay interest of 11 per cent per annum on the said $60 million to the plaintiff with effect from January 29, 2009 till the date of final payment.
A statement signed by the Head, Customer Service and Public Relations of the NIB, Mr Jerry Nathaniel Halm, and issued in Accra yesterday said, “In as much as the bank regrets the unfortunate and unjustifiable judgement given by the court, it wishes to assure its numerous customers that the bank will immediately exercise its right to file an appeal.”
“The bank is totally convinced that the verdict of the judge did not reflect the facts that were presented before the court and, therefore, believes that the Court of Appeal will uphold its appeal and reverse the orders made by the Commercial Court,” it held.
The bank took the opportunity to assure its clients that the “ruling has not in any way affected the bank’s business with its customers”.
It further assured the customers that their money was safe with the bank, and that ”any information alluding to a collapse of the bank and a loss of customers’ money is totally false”.
In a two-hour ruling, the court held that there was no evidence to support the bank’s allegation of negligence and fraud on the part of the plaintiff and the other defendants, Eland International Ghana Limited and the former Managing Director of the NIB, Mr Daniel Charles Gyimah.
The plaintiff, through its lawyer, Nene Amegatcher, sued the NIB, Eland International Ghana Limited and Mr Gyimah on March 4, 2010, claiming the sum of US$60 million guaranteed by the bank.
By a collateral management agreement dated November 10, 2001, the NIB and Eland International Ghana entered into a binding agreement under which Eland International would order and supply Eland International Ghana Limited with various commodities from abroad on credit.
Under the arrangement, the NIB was to hold the commodities in bond, regulate their sale and put the money realised from the sale in an escrow account which was created and controlled by the NIB and then later remit to Eland International Limited.
As a follow up to the 2001 agreement, the NIB, acting through Mr Gyimah, on May 7, 2007 guaranteed, per Aval, 30 promissory notes issued by Eland International to facilitate the said agricultural projects.
However, by the terms of the Aval guarantee, the plaintiff was entitled, upon maturity of the notes, to claim its value directly from the NIB without recourse to Eland International Ghana Limited.
Accordingly, in January 2009, the plaintiff contacted Ghana International Bank, which was the NIB’s correspondent bank in the United Kingdom, and requested for the payment of the sum of US$60 million being the maturity value of the notes.
Unfortunately, the request was not honoured, resulting in the plaintiff following up by making demands directly on the NIB, only to be told that the NIB had no knowledge whatsoever of the existence of the notes or the guarantee granted on its behalf by Mr Gyimah.
The plaintiff resorted to a court action on March 4, 2010 after its repeated demands yielded no results.
Writer’s e-mail: mabel.baneseh.graphic.com.gh



NIB slapped with $60 million judgement debt

 February 22, 2013 (Page 22)

The National Investment Bank (NIB) suffered a setback yesterday when it was ordered by the Commercial Court in Accra to pay $60 million to Dominion Corporate Trustees Limited, a firm in the United Kingdom (UK).
The bank was also ordered to pay 11 per cent interest on the said amount with effect from January 29, 2009 until the date of final payment of its debt.
Per the orders of the Commercial Court, the bank, as of January 29, 2013, had an outstanding debt of $86.4 million, which includes $26.4 million interest on the amount.
In a two-hour ruling, the court, presided over by Mr Justice Amadu Tanko, held that there was no evidence to support the bank’s allegation of negligence and fraud on the part of the plaintiff and two other defendants, Eland International Ghana Limited and the former Managing Director of the NIB, Mr Daniel Charles Gyimah.

Background to case

The plaintiff, Dominion Corporate Trustees Limited, through its lawyer, Nene Amegatcher, sued the NIB, Eland International Ghana Limited and Mr Gyimah on March 4, 2010, claiming the sum of US$60 million guaranteed by the bank.
By a collateral management agreement dated November 10, 2001, the NIB and Eland International Ghana entered into a binding agreement under which Eland International  would order and supply Eland International Ghana Limited with various commodities from abroad on credit.
Under the arrangement, the NIB was to hold the commodities in bond, regulate their sale and put the money realised from the sale in an escrow account which was created and controlled by the NIB and then later remit to Eland International Limited.
As a follow up to the 2001 agreement, the NIB, acting through Mr Gyimah, on May 7, 2007 guaranteed, per Aval, 30 promissory notes issued by Eland International to facilitate the said agricultural projects.
However, by the terms of the Aval guarantee, the plaintiff was entitled, upon maturity of the notes, to claim its value directly from the NIB without recourse to Eland International Ghana Limited.
Accordingly, in January 2009, the plaintiff contacted Ghana International Bank, which was the NIB’s correspondent bank in the United Kingdom, and requested for the payment of the sum of US$60 million being the maturity value of the notes.
Unfortunately, the request was not honoured, resulting in the plaintiff following up by making demands directly on the NIB, only to be told that NIB had no knowledge whatsoever of the existence of the notes or the guarantee granted on its behalf by Mr Gyimah.
The plaintiff resorted to a court action on March 4, 2010 after its repeated demands yielded no results.

The ruling

Relying extensively on the Companies Code (Act 179), the Banking Act 2004 (Act 673) and other legal authorities, the court held that Mr Gyimah’s authority to issue a promissory note was at the heart of the issues before the court.
According to the court, the fact that Mr Gyimah was the Managing Director of the NIB was not in dispute and for that reason his actions or inaction was on behalf of the NIB.
It said the plaintiff adduced 28 exhibits, as well as ‘mass’ oral evidence, which all pointed to the fact that the NIB ought to be liable for actions made for and on its behalf by Mr Gyimah.
The court held that the NIB board did not raise any queries when Mr Gyimah embarked on the transaction on behalf of the NIB, adding that evidence led in court was “revealing” and led to the issue of “management’s indifference to the transaction”.
It held that a defence witness had led evidence that the NIB received $45 million in liabilities and it was, therefore, “erroneous to say the transaction did not have the blessing of the NIB”.
The court said “an inept corporate attitude” on the part of the NIB should not be a “pretext by which the NIB should renege on its obligations”. adding, “The state of mind of Mr Gyimah was the state of mind of NIB.”

NIB’s response 

The NIB had held that the plaintiff should have known that Mr Gyimah lacked the power to act and had, accordingly, acted “irregularly”, but the court held otherwise and subsequently described the NIB’s tagging of the transaction as fraudulent and forged as “smuggled”.
According to the court, the NIB failed to “impeach, contradict and rebut” the evidence of the plaintiff, adding that the bank also failed to lead “admissible, credible and relevant evidence”.
It said the NIB rather raised allegations of fraud and forgery against Mr Gyimah and further pointed out that although the allegation of forgery was material, the bank failed to lead evidence to that effect.
Rather, the NIB decided to “surprise” and “ambush” Mr Gyimah by introducing elements of fraud and forgery into the case without proving them.
Describing the plaintiff as an “innocent third party”, the court held that Mr Gyimah was presumed by law to have the authority of the NIB to honour the promissory notes.
On the issue of whether or not  Eland International Ghana Limited was liable to indemnify the NIB against the plaintiff’s claim, the court said no, adding that the NIB’s claim that the transaction was “tainted by fraud” was not tenable and consequently dismissed the NIB’s counter-claims.
It further pointed out that the entire transaction involving the issuance and purchase of the promissory notes was legal under the Banking Act, 2004 (Act 673).
By the court’s judgement, the plaintiff, Eland International Ghana Limited and Mr Gyimah were entitled to claims, but their lawyers, Nene Amegatcher, Mr Kwasi Adu Mante and Mr Kwaku Asirifi, respectively, were advised to file formal claims for costs and damages.
Nene Amegatcher had prayed the court to award GH¢5 million in favour of his client, but the court advised him to put the request in a formal application.

Court of appeal to rule in Woyome's case


 February 20, 2013 (Front page)

THE Court of Appeal will on May 9, 2013, decide whether or not, it was right for the Commercial Court to allow the state to introduce evidence of fraud in the payment of GHC51.2 million to a businessman, Alfred Agbesi Woyome.
Woyome appealed against the Commercial Court’s February 29, 2012, decision to allow the state to introduce evidence of fraud on grounds that, 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.
At the Court of Appeal’s sitting in Accra today, legal representatives of the state and Woyome informed the court that they intended to rely on written submissions with respect to the issue.
Woyome was represented by Alhaji Musah Ahmed while the state was represented by Ms Dorothy Afriyie.
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, but according to Woyome, the state “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.”
The Commercial Division of the Fast Track High Court on February 29, 2012 presided over by Ms Justice Barbara Ackah-Yensu, granted permission to the state to introduce allegations of fraud against Woyome and awarded cost of GHC2, 000 against the state Woyome for delaying.
Dissatisfied with the Commercial Court’s decision, Woyome filed an appeal at the Court of Appeal on March 13, 2012 challenging the decision of the Commercial Court to grant the state its request.
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.”
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 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.
 But in his amended statement of defence and counter-claim, Woyome, 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. Woyome, is currently standing trial at the Financial Division of the Fast Track High Court on two counts of willfully causing financial loss to the state and defrauding by false pretence.
He has denied any wrongdoing and is currently on a GHC20 million bail.
Hearing of his criminal matter resumes on February 28, 2013.
The state is expected to bring a witness on the next adjourned date after failing to produce a witness on three consecutive occasions.


END.





Austro-Invest struck out in suit against Woyome, others

 February 21, 2013 (Front page)

The Supreme Court Wednesday struck out the name of Austro-Invest Management Company Limited, a company which had been sued alongside three others for the recovery of GH¢51.2 million to the state.
The court struck out the company’s name from the suit following a revelation by the applicant, Mr Martin Amidu, that the company was liquidated in Switzerland on July 26, 2011.
In exercising his right as a citizen of Ghana and in the interest of the public, Mr Amidu dragged the Attorney-General, Waterville Holdings (BVI) Limited, Austro-Invest Management Limited and Woyome to court for their various actions and conduct which, according to him, resulted in the country losing GH¢51.2 million.
But during the court’s sitting in Accra yesterday, Mr Amidu informed the nine-member court that efforts to locate and serve Austro-Invest resulted in his discovering that the company was liquidated on July 26, 2011.
The nine-member court, presided over by Professor Justice S. K. Date-Bah, accordingly struck out Austro-Invest’s name from the suit, leaving the A-G, Waterville and Woyome as the remaining defendants.
Other members of the panel were Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice Paul Baffoe-Bonnie, Mr Justice N. S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo.
It also emerged, through Mr Amidu, that Austro-Invest initiated a suit at the High Court in Accra on November 26, 2011, claiming a share of the GH¢51.2 million from Woyome but the suit was discontinued by its lawyer.
The court also granted permission to a Chief State Attorney, Mrs Dorothy Afriyie, to file the state’s response to the suit within seven days.
Lawyers for other parties in the case, namely, Mr Peasah Boadu, who represented Waterville, and Mr Osafo Buabeng, who represented Woyome, were also granted permission to file their responses to the suit within seven days.
A new date will be fixed for hearing of the substantive matter after all the necessary papers have been filed.
In the substantive matter, Mr Amidu is praying the Supreme Court to nullify the GH¢51.2 million payment to Woyome, as well as determine whether or not the Republic of Ghana could pay claims for a loan transaction which, on no occasion, went to Parliament and had not been received by the Government of Ghana.
Mr Amidu’s contention is that the alleged agreements between the Republic of Ghana and Waterville and its associates, Austro-Invest and Woyome, were loan and international business or economic transactions which never became operative for lack of parliamentary approval under Article 181 of the Constitution.
The applicant further questioned the jurisdiction of the High Court to have entertained and granted reliefs sought in Mr Woyome’s Suit No. RPC/152/10 against the Republic of Ghana on grounds of his (Woyome’s) lack of locus standi and a cause of action to commence the action in the first place for absence of a contract with the Government of Ghana
In a related development, the Supreme Court has adjourned to March 5, 2013 hearing of the suit challenging the conduct of the government in agreeing to pay and making part payment US$1,300,000 to Isofoton S.A.
The adjournment is to enable a lawyer, Mr Kizito Beyuo, to formally put in an application to announce himself as the legal representative of two defendants in the case.
The adjournment will also enable the two defendants to file processes to reflect Mr Beyuo as their legal representative.
One of the defendants, Mr Anane Agyei Forson, had earlier deposed in an affidavit that he represented himself and Isofoton in the case but Mr Beyuo later appeared in court representing the two (Mr Forson and Isofoton).
The court also gave the Attorney-General’s Department seven days to file its statement of case.
A Principal State Attorney, Mrs Sylvia Adusu, represented the state, while Mr Beyuo represented Isofoton and Mr Forson.
Describing the payment to Isofoton as “unconstitutional”, the plaintiff, Mr Martin Amidu, dragged the Attorney-General, Isofoton and its agent, Mr Forson, to the Supreme Court.
He is praying the Supreme Court to make orders against the conduct of Isofoton and Mr Forson for making claims against the government when they knew that there was no operative contract with the government within the meaning of Article 181(5) of the 1992 Constitution.
The plaintiff is also questioning the decision of the High Court to have entertained Isofoton’s Suit numbers, BC23/2008 and BC24/2008 against the state on the grounds that Isofoton lacked the locus standi to commence that action.
According to Mr Amidu, Isofoton did not have the fiat to sue the government because it did not have any operative contract with the government.

President has no power to dissolve BoG Board

 February 20, 2013 (Page 3 Lead)
The Fast Track High Court has declared that it is unlawful for the President of the Republic to dissolve the board of the Bank of Ghana (BoG) before the board has served its full term.
It said although the 1992 Constitution mandated the President of the Republic to appoint boards for state institutions, it was unlawful for the President to dissolve the BoG board before it had served its three-year mandate.
It, however, gave President John Dramani Mahama the green light to appoint a new board for the BoG following the expiration of the term of an interim board on February 18, 2011.
Giving its judgement in a suit instituted against the Attorney-General and the Governor of the BoG by Mr Sam Okudzeto over the dissolution of the BoG board in January 2009 when its term had not expired, the court held that “the act of the President in purporting to remove the plaintiff from membership of the board when his term had not expired was unlawful”.
In a 61-page judgement laced with numerous legal authorities, the presiding judge, Mr Justice K. N. Aduama Osei, a Court of Appeal judge who sat with additional responsibility as a High Court judge, however, held that the term of the interim board came to an end on February 18, 2011.
“After this judgement, therefore, new appointments can be made to the board of the BoG, in accordance with Act 612,” the court held.
Mr Okudzeto, through his lawyer, Nene Amegatcher, commenced an action on April 22, 2009, stating that he (Mr Okudzeto) was serving a three-year term on the board of the BoG when he received a letter dated January 28, 2009 and signed by the secretary to the board notifying all members of the board that, by a presidential directive, all boards of state institutions had been dissolved and for that reason the 569th meeting of the board of BoG had been cancelled.
Dissatisfied with the directive from the Presidency, Mr Okudzeto made several attempts to draw the then President’s attention to the illegality of the directive but they fell on deaf ears, thereby necessitating the legal action.
In its ruling, the court declared that “the purported removal of Mr Okudzeto and all other external directors of the board of the BoG whose fixed term had not expired under the governing law of the bank was illegal, void and of no effect”.
It further held that the purported appointment of new members to the board of the BoG when the fixed term of the plaintiff and other board members subsisted was a violation of the laws of the Republic and, therefore, void.
Touching on the plaintiff’s call for the setting aside of the then new board of the BoG, the court submitted that that call had been rendered ineffective because the  current term of the interim board had elapsed.
It, however, held that the plaintiff’s action was “not merely academic and hypothetical facts”, as alluded to by counsel for the BoG, adding that the issues raised by Mr Okudzeto were “on real controversies”.
The court said plaintiff’s action raised the issue “as to the extent of the powers of the President as the appointing authority under Act 612 and they are issues in which Ghanaians generally have an interest and which will benefit society if they are resolved definitively”.
“They are also issues in which the plaintiff, as a citizen, continues to have an interest, in spite of the fact that the term of the board of which he was a member has expired,” it submitted, adding, “The issues are very much alive.”
Tackling the subject of whether or not Mr Okudzeto deserved any compensation, the court was of the view that he (Mr Okudzeto) did not raise that issue in his claims and for that reason it “will refrain from making a case for the award of such compensation”.
According to the court, the plaintiff’s main concern was to have the issues determined “definitively that by the acts or deeds complained about, the Presidency has, to the personal detriment of the plaintiff, flouted certain statutory provisions and that as a citizen of Ghana, he has an interest to ensure that the illegality of those acts or deeds is declared and are perpetuated or repeated”.
“In that respect, the plaintiff has been vindicated and I do not intend to discuss the issue of monetary compensation.” it added.

Assets of Woyome defrozen

 February 15, 2013 (Front page)

The Court of Appeal has ordered the Economic and Organised Crime Office (EOCO) to de-freeze the accounts and assets of the businessman, Alfred Agbesi Woyome, who has been accused of defrauding the state to the tune of GH¢51.2 million.
In a unanimous decision Thursday, the court, however, held that the Agricultural Development Bank (ADB) account into which the alleged payment was made should be frozen until the final determination of the criminal case against him.
The court held that it was wrong for the High Court to have granted EOCO's request for the freezing of Woyome's accounts.
It further ruled that the reason for the freezing of all Woyome's assets was a "nullity" because that action was contrary to Section 34 of the EOCO Act 804.
The court gave the order after Mr Woyome’s lawyer, Mr Osafo Buabeng, had appealed against the High Court's 2012 order which froze Woyome's accounts and assets.
The court was presided over by Mrs Justice Henrietta Abban, with Mr Justice F. Korbieh, who read the order, and Mr Justice Senyo Dzamefe as panel members.
 Woyome  is facing two counts of defrauding by false pretences and causing financial loss to the state.
The accused, who has denied any wrongdoing, is alleged to have made fraudulent claims to the government, resulting in the payment of GH¢51.2 million to him.
The three prosecution witnesses who have testified in the matter are the Deputy Head of the Legal Department of the Ministry of Finance and Economic Planning (MoFEP), Mrs Mangowa Ghanney; a former Minister of MoFEP, Mr Yaw Osafo-Maafo, and a former Deputy Minister of Finance, Mr Kwaku Agyemang-Manu.

ECG, Sunon Asogli haggle over unpaid bill

 February 19, 2013 (Centre Spread)

The heat generated by the power outages being experienced nation-wide promises to get hotter as two bodies in the power sector, the Electricity Company of Ghana (ECG) and Sunon Asogli, a private power producer, battle over a disputed $9 million debt that Sunon Asogli claims ECG owes it.
While Sunon Asogli, which provides 14 per cent of the entire power supply of ECG, claims it is owed $9 million, the ECG insists it is indebted to Sunon Asogli to the tune of $5.5 million.
In an interview with Graphic Online, the Director of Sunon Asogli, Togbe Afede XIV, said “payment delays are creating serious cash-flow problems and jeopardising expansion plans to add 360 megawatts and a further 1,000 megawatts of power”.
Although the Managing Director of the ECG, Mr William Hutton-Mensah, admitted the ECG owed Sunon Asogli, he disputed the $9 million figure, explaining that “after the reconciliation of figures, we now owe Sunon Asogli $5.5 million”.
Reacting to the ECG’s $5.5 million figure, Togbe Afede, who is also the President of the Volta Regional House of Chiefs, simply stated, “We have also reconciled our figures and they owe us $9 million. I will consult with my partners on the next line of action to be taken.”
Sunon Asogli’s plant produces 200 megawatts of power but is currently not operating because of a break in the supply of gas to its plant by the damage to the West African Gas Company’s (WAGPCO) pipeline in August 2012.
What is disturbing in the emerging controversy between the two companies is that consumers of electricity will suffer if the misunderstanding is not resolved immediately.
Sunon Asogli’s inability to operate, the destruction of the ECG’s Achimota sub-station and other factors have resulted in the current load-shedding exercise.
Highlighting the difficulties faced by Sunon Asogli as a result of the debt owed it by the ECG, Togbe Afede said, “The worst part is, aside from maintaining the plant and taking care of labour, our situation is worsened by the fact that since we stopped production last year, the ECG has not finished paying for what we produced.”
Explaining Asogli’s relationship with the ECG, he said in January 2011, it began producing electricity for sale to the ECG under a power purchase agreement (PPA) the company had earlier signed with the ECG in 2008.
He stated that in August 2012, the pipeline that transported gas from Nigeria to Ghana was damaged, thereby “greatly affecting the operations of Sunon Asogli. The situation is tough”.
According to him, Sunon Asogli was expected to pay for gas ahead of time and it was, therefore, unfortunate that the ECG was not taking expeditious steps to pay its debt.
“Sunon Asogli is the most efficient and reliable power supplier in the country with a plant capacity of 200 MW. It, therefore, deserves to be supported if the government desires private investors to help meet its target of 5,000 MW by 2015, instead of the current frustration we are enduring,” Togbe Afede said.
The issue, he pointed out, was “if gas were to be supplied today, Sunon Asogli will not be able to pay”, adding, “If we were in production, we would not be experiencing the power problems we are currently facing today.”
Another unfortunate situation, he explained, was that his relationship with the investors had been strained because “they think I am not doing much to claim their money for them”.
Responding to Togbe Afede’s sentiments, the ECG boss explained that the ECG would continue to honour its debt obligation by paying GH¢500,000 weekly.
“The last time we made payment was last week. We will pay GH¢500,000 this week and pay another instalment next week,” Mr Hutton-Mensah said.
According to him, the load-shedding exercise had reduced the ECG’s revenue generation and that had accounted for its inability to meet its debt obligation on time.
Throwing more light on the issue, the acting Public Relations Officer of the ECG, Mr William Boateng, said the load-shedding exercise was greatly affecting the ECG’s revenue mobilisation and “so affecting our financial obligation to our creditors”.
He said “the commitment is there” and expressed the hope that WAGPCO would resume the supply of gas by the end of March 2013 for the situation to be normalised.
Mr Boateng pleaded with consumers to bear with the ECG in these trying moments.

Petitioners submit particulars on 4,709 polling stations - EC provides number of voters abroad

February 13, 2013 (Front page)

The petitioners contesting the declaration of President Mahama as the winner of the December 2012 polls have submitted the names and codes of 4,709 polling stations where alleged irregularities took place.
They have also filed the names and codes of the polling stations where voting took place without biometric verification.
President John Dramani Mahama and the Electoral Commission (EC), who are the first and second respondents in the petition are expected to be served with the filed documents before the end of the week.
Pursuant to the court’s order on  February 5, 2013, the petitioners are expected to submit further and better particulars on the remaining 7,207 polling stations where the alleged irregularities took place within two weeks.
The petitioners have also filed the amended petition which has increased the number of polling stations where alleged irregularities took place from 4,709 to 11,916, thereby, making 11,916, the official figure in the court’s records.
They filed the amendment following February 7, 2013 permission by the Supreme Court.
The Electoral Commission (EC), for its part, has complied with the Supreme Court orders by answering questions posed by petitioners.
The petitioners, who are the presidential candidate of the New Patriotic Party (NPP), Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed a petition at the Supreme Court, dated December 28, 2012 and noted, among other things, that irregularities recorded at 11,916 polling stations, favoured President Mahama but President Mahama and the EC have denied the claims.
Answering interrogatories posed by the petitioners, a table submitted by the EC said the Ministry of Foreign Affairs submitted a total of 2,350 as members of staff, but the EC captured a total of 705 staff during the registration process which took place between September and October 2012.
The EC explained in an answer to interrogatories posed by the petitioners and filed at the Supreme Court registry Tuesday that, 55 persons who registered in Accra, were staff serving in Ghanaian missions abroad but had returned home.
It said the list of foreign service personnel, their dependants, students on Ghana government scholarship abroad and Ghanaians working with international organisations together with the locations and proposed dates of registration was given by the EC to both the NPP and the NDC before the registration abroad took place.
“Honourable Dr Matthew Opoku Prempeh (NPP) and Mr George Lawson (NDC), collected the material on behalf of their political parties in the middle of September, 2012,” adding “no voting took place outside Ghana.”
Countries where registration exercise took place were London, 49; The Hague, 27; Moscow, 34; Berlin, 27; Geneva, 26; Rome, 16; Spain, 3; Cuba, 15; Washington DC, 23; New York, 55; Brazil, 13; China, 20; Seoul, 22; India, 17; Dubai, 19; Malaysia, 13, Addis Ababa, 36; Pretoria, 43; Rabat, 45; Algiers, 28; Cairo, 20; Monrovia, 27, Dakar, 21; Abidjan, 13; Bamako, 11; Abuja, 30 and Lome 7.
The Deputy Chairman in-charge of Finance and Administration of the EC, Mr Amadu Sulley, said the initial provisional figure it announced of registered voters was 13,917,366, but after the conduct of registration of foreign service officials, students abroad on government scholarship, other Ghanaians working abroad with international organisations and the late registration of service personnel returning from international peacekeeping duties, it announced that a “figure of 14,031,793 registered voters.
“This was the figure used in printing the final voters copies which were given to the political parties. Following directives from the court on decision regarding appeals from challenges and objections raised during the exhibition of the provisional voters register under C.I. 72, the number of registered voters stood at 14,031,680,” the EC stated.
According to the EC, “further directives received from the court are yet to be incorporated into the register as well as the recent registrations effected in the Kassena-Nankana District, following the order of the High Court. This will alter the total number of registered voters.
“The voters register is dynamic, not static, particularly, in this era of continuous registration as required by Regulation 9 (C. I. 72)”, the EC added.
In answer to whether or not Nana Akufo-Addo or the NPP was notified of the dates of registration abroad, the EC said “the respondent is not obliged by law to allow political party representatives to be present during registration exercises but has done so, in practice, as a courtesy and to enhance transparency.
It was open to the political parties to have their representatives present at the registration locations abroad if they had so wished”, the EC added.
The petitioners on January 31, 2013, amended their petition which they had filed on December 28, 2012, to request the Supreme Court to annul 4,670,504 valid votes cast during the election at 11,916 polling stations where alleged irregularities were recorded.
They have also introduced the claim that there were 28 locations where elections took place, which according to them, were not part of the 26,002 polling stations created by the EC.