Businessman, Alfred Agbesi Woyome, suffered a legal blow in Accra yesterday when the Supreme Court unanimously ordered him to refund GHȻ51.2 million to the state.
According to the court, Woyome got the money out of unconstitutional and invalid contracts between the state and Waterville Holdings Limited in 2006 for the construction of stadia for CAN 2008.
It held that the contracts upon which Woyome made and received the claim were in contravention of Article 181 (5) of the 1992 Constitution of Ghana, which requires such contracts to be laid before and approved by Parliament.
The 11-member court, presided over by the Chief Justice, Mrs Justice Georgina Theodora Wood, was ruling on a review application filed by a former Attorney-General and Minister of Justice, Mr Martin Amidu.
Other members of the panel were Justices Julius Ansah, Sophia Adinyira, Rose Owusu, Jones Dotse, Anin Yeboah, Paul Baffoe-Bonnie, N. S. Gbadegbe, Vida Akoto Bamfo, A. A. Bennin and J.B. Akamba.
The Supreme Court had, on June 14, 2013, directed the international construction firm, Waterville Holdings Limited (BVI), to refund all the money 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.
That was because it had contravened Article 181 (5) of the 1992 Constitution which required such contracts to go to Parliament for approval.
Mr Amidu had, in the original suit, prayed the court to order Woyome to refund the money he had received as a result of the void contract the government had entered into with Waterville Holdings.
But 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 money.
According to the applicant, who filed the application for review on July 12, 2013, he had read the two judgements delivered by the Supreme Court very carefully, along with other Ghanaians of like thinking, and had come to the conclusion that some aspects of the judgement contained “exceptional circumstances that have resulted in what we perceive may constitute miscarriage of justice”.
He said the 1992 Constitution imposed both rights and obligations, particularly under articles 2 and 3, on every Ghanaian citizen to ensure that the constitutional order established by the Constitution was not threatened or by an unlawful means abrogated.
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 review decision
Reading out the orders of the court on behalf of her colleagues, Mrs Justice Wood said the conduct of the then Attorney-General and Minister of Justice in paying or ordering the payment of money to Austro Invest for a “purported” financial engineering which arose out of an April 26, 2006 agreement was not laid before Parliament and was, therefore, unconstitutional.
Austro-Invest was contracted by Woyome to syndicate funding for the grant of a 1.1 billion euro facility but was paid off by Woyome.
Woyome had, on June 25, 2014, told the Financial Division of the High Court hearing a criminal case instituted against him by the state that Austro-Invest sued him at the High Court, but the case was discontinued after he paid $1 million to Austro Invest through M-powapak.
Proceedings at High Court void
The court further declared as null and void and of no legal effect proceedings at the High Court (Commercial Division) that entertained a suit brought against the state by Woyome on April 19, 2010.
It also held that the conduct of Woyome and Austro-Invest in making claims and receiving payment on two “in-operative agreements” which were international businesses and had not received parliamentary approval was also illegal.
The court’s lead opinion, on which the entire judgement hinged, was delivered by Mr Justice Dotse, who espoused the need for strict adherence to all components of the 1992 Constitution of Ghana.
Touching on the arguments from Woyome’s legal team that the court should dismiss the review application on the grounds that the statement of case accompanying it was not signed, Mrs Justice Wood said there was no logical basis for that in so far as the affidavit in support was signed.
“This is not to give the blessing of failure to sign statement of case,” she noted, and said it was commendable to sign statements of case.
She, however, noted that the applicant had nonetheless adhered to the Supreme Court Rules (CI 16) which recognises signed sworn affidavits which, by law, renders documents genuine.
Describing Woyome’s legal team’s arguments as “untenable”, Mrs Justice Wood said Mr Amidu did, in truth, sign his affidavit in support which clearly spelt out the content of his review application.
She, accordingly, dismissed the objection with “no difficulty”.
Siding with the positions of Justices Wood and Dotse, Mr Justice Bennin said there had not been any direct dealing between Woyome and the government of Ghana.
He said Woyome had indicated that he had been paid out of the agreement and for that reason the principle of law applied to the present state of the original contract and any reliance on it.
Justice Bennin said the judgement obtained by Woyome was “tainted with illegality and is thus unenforceable”.
According to him, the judgement from the Commercial Court was unenforceable because the “the benefits to Woyome flow from the agreement and he was fully aware”.
Lawyers for Woyome were absent in court, but in a brief interview with the Daily Graphic, the businessman said, “We will study the judgement and take appropriate action.”
Mr Amidu, who looked calm throughout the reading of the court’s decision, quietly left the courtroom after the decision.
Effects of court decision
Per the court’s decision, Woyome is bound by law to refund the money.
The outstanding issue is whether or not he had obtained the said money through fraud, as is being alleged by the state.
He is currently standing trial at the Financial Division of the High Court, presided over by Mr Justice John Ajet-Nasam.
Woyome is billed to appear before the court on October 10, 2014. He is currently being cross-examined by the state.
He has pleaded not guilty to two counts of causing financial loss and defrauding by false pretence.