July 23, 2013 (Page 20)
HAVING succeeded in prevailing upon the Supreme Court to order two foreign companies to refund more than GH¢60 million to the state, a former Attorney-General and Minister of Justice, Mr Martin A. B. K. Amidu, is still not happy with aspects of the court’s decision.
Consequently, he wants the Supreme Court to review aspects of its decision which declined to order a businessman, Mr Alfred Woyome, to refund GH¢51.2 million he received from the government in the form of judgement debt.
The applicant is also urging the court to reconsider its decision not to hold the Attorney-General and the country representative of Isofoton S.A., an energy firm which was ordered to refund $325,472 to the state, liable.
According to the Supreme Court, which gave its judgements on two separate occasions, the government’s contract with the construction firm, Waterville Holdings Limited (BVI), and the Spanish energy firm, Isofoton S. A., were unconstitutional and, therefore, null and void.
Background to the Case
The Supreme Court, on June 14, 2013, directed Waterville Holdings refund all moneys paid to it by the Ghana government on the premise that it had no valid and constitutional contractual agreement with the government.
Waterville is expected to refund 25 million euros it received from the government following the court’s unanimous judgement that the said contract it entered into with the government for stadia construction for CAN 2008 was unconstitutional because it had contravened Article 181 (5) of the 1992 Constitution which required such contracts to go to Parliament for approval.
In the other judgement, the court, on June 21, 2013, ordered Isofoton S.A. to refund the cedi equivalent of $325,472 it received from the government in March 2011.
The court also directed the company to refund all moneys it had so far received from the government on the grounds that the agreements resulting in the payments were unconstitutional and, therefore, null and void
The two suits were filed by Mr Amidu, who had argued that both payments were illegal, null and void and of no legal effect.
He had prayed the court to order Mr Woyome to refund moneys he had received as a result of the void contract the government had entered into with Waterville.
The court declined jurisdiction over the issue, with the reason that the Attorney-General was currently pursuing the matter at the Commercial Court to retrieve the GH¢51.2 million paid to Mr Woyome.
With respect to the suit against Isofoton S. A., Mr Amidu had joined the local agent of Isofoton, Mr Anane Agyei-Forson, and prayed the court to jointly order him to refund all moneys the company had received, but the court held a different view and exonerated Mr Agyei-Forson.
The court freed Agyei-Forson from any wrongdoing on the ground that Mr Amidu had failed to show a cause of action against him.
The court also refused to hold the Attorney-General liable, but Mr Amidu said the exclusion of Mr Woyome, Mr Agyei-Forson and the Attorney-General could amount to a miscarriage of justice.
According to the applicant, who filed the applications for review on July 12 and July 19, 2013, respectively, he had read the two judgements delivered by the Supreme Court very carefully, with other Ghanaians of like thinking, and had come to the conclusion that some aspects contained “exceptional circumstances that have resulted in what we perceive may constitute miscarriage of justice”.
Hearing of both applications has been slated for October 15, 2013.
Contract Null and Void
In the Waterville judgement, the court declared as null and void and of no operative effect a contract titled “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 April 26, 2006 between the Republic of Ghana and Waterville Holdings (BVI) Limited of P. O. Box 3444 Road Town, Tortola, British Virgin Islands.
The court agreed with the plaintiff, Mr Amidu, that the contract was 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 it had been laid before and approved by Parliament.
It also held that the two separate but similar agreements, both dated April 26, 2006, were in contravention of Article 181 (5) of the 1992 Constitution and further declared that a bridge financing agreement arising between the Republic of Ghana and Waterville Holding (BVI) Limited, pursuant to the two agreements between the two bodies, was 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.
Isofoton, which is involved in designing, manufacturing and supplying solar energy products, was expected to engage on a project for agricultural irrigation and rural electrification based on solar technologies in 2006 but the then government abrogated the contract and re-awarded it to another Spanish firm.
Isofoton was demanding judgement debt of $1.3 million, for which the government had started paying in instalment, but the Supreme Court, on February 8, 2013, put a hold on further payment until the final determination of the suit brought against it by Mr Amidu.
The Supreme Court, in its judgement, held that the lower court hearing an action instituted against the government by Isofoton S.A. on the abrogation of the contract had no locus to continue hearing the case because the court was of the view that it did not have jurisdiction.
• The court was full of praise for Mr Amidu for his public spiritedness which fuelled the meticulous and industrious presentation of the cases which resulted in the court’s order for a refund.
• It, however, chastised civil society for failing to lend support to Mr Amidu who fought the legal battle alone.