March 8, 2013 (Front Page)
The Supreme Court on March 7, 2013, put a hold on further payment of money to Isofoton S. A. until the final determination of a suit brought against the company by a former Attorney-General and Minister of Justice, Mr Martin A. Amidu.
The court also stayed all proceedings in connection with the case at the lower courts until the final determination of the suit which is challenging the constitutionality of the payment to Isofoton S. A. by the government.
The court’s order was aimed at not rendering Mr Amidu’s case a nullity in the event that he succeeds in his claim against the parties in the case.
An amount of $1.3 million has so far been paid to Isofoton S. A. by the state, leaving a balance of $400,000.
Displeased with the government’s conduct in the issue, Mr Amidu dragged the Attorney-General and Mr Anane Agyei Forson, an agent of Isofoton S.A., to the Supreme Court on July 24, 2012.
While the matter was in court, Mr Amidu filed a motion praying the court to put a freeze on further payment to Isofoton S.A. until the court came out with its final verdict on the issue.
He also pleaded with the court to maintain the status quo with regard to the payment of $1.3 million while it (court) looked into the whole issue.
At the court’s sitting in Accra yesterday, the state withdrew its application which prayed it to overturn the lower court’s refusal to put a freeze on the payment.
Rather, it associated itself with Mr Amidu’s motion, which the court eventually granted.
Mrs Sylvia Adusu represented the state.
Counsel for Isofoton S.A. and Mr Forson, Mr Kizito Beyuo, opposed Mr Amidu’s application on the grounds that the procedure adopted was wrong.
Mr Beyuo argued that the government had entered into an agreement with Isofoton S.A. to make the said payment and it was, therefore, wrong for it to be held that the said $1.3 million arose out of judgement debt.
However, questions from the panel members to Mr Beyuo clearly indicated that the panel disagreed with his position.
Consequently, the court upheld Mr Amidu’s request for the freezing of further payment until the final determination of the matter.
The nine-member court was presided over by Professor Justice S.K. Date-Bah, with 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 as members.
Hearing continues on April 11, 2013.
In the substantive matter, Mr Amidu is praying the Supreme Court to make orders against the conduct of Isofoton and Mr Forson for making claims against the government of Ghana 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 jurisdiction of the High Court to have entertained Isofoton’s suits numbered BC23/2008 and BC24/2008 against the state.
According to Mr Amidu, Isofoton lacked the locus standi to commence that action because it did not have the fiat to sue the government and for that reason it could have had any operative contract with the government of Ghana.
Mr Amidu’s contention was that “on a true and proper construction of Article 181(3) and (4) of the Constitution and Section 7 of the Loans Act, (Act 335), the laying before and approval on August 1, 2005 of the terms and conditions of the Second Financial Protocol between the Republic of Ghana and the Kingdom of Spain for €65 million euros for the implementation of development projects and programmes in Ghana did not nullify the effect of Article 181(5) of the 1992 Constitution that mandates further laying before and approval of any specific international business or economic transaction to which the government is a party, even if payment had to be made from the said loan approval by Parliament”.
According to him, pronouncements by a Deputy Minister of Information, Mr Samuel Okudzeto Ablakwa, that the government was about to pay the balance of the alleged Isofoton judgment debt, “while the matter was still pending on appeal, is a clear sign that the government is incapable of pursuing and protecting the public interest in this matter fairly and impartially”.
He further stated that the said pronouncement by Mr Ablakwa on July 7, 2012 had since not been denied by the Attorney-General’s Department.