Saturday, August 1, 2015

Wereko-Brobby files injunction to stop collection of TV licence fees

Charles Wereko-Brobby
A former Chief Executive Officer (CEO) of the Volta River Authority (VRA), Dr Charles Wereko-Brobby, has filed a suit at the High Court to contest moves by the Ghana Broadcasting Corporation (GBC) to collect television licence fees from August 1, 2015.
According to the applicant, the GBC did not have legislative backing to collect television licence fees from owners of television sets.
Authorities at the state broadcaster, with the backing of the National Media Commission (NMC), have declared their intention to resume the collection of television licence fees.
But the plan has been met with stiff opposition from the public.
Dr Wereko-Brobby is one of the leading opponents of the proposed resumption of the collection of television licence fees.
In a writ of summons, the applicant is praying the Fast Track High Court to perpetually restrain GBC from “illegally” collecting TV licence fees.
Joined to the suit are the NMC, the Ghana Independent Broadcasters Association (GIBA) and the Attorney-General.
GBC cannot share money
The plaintiff contends that the GBC “cannot share any money received by it with any other entity, whether private or state-owned, as same ought to be deposited in its bank accounts”.
He also contends that the NMC, GIBA and the Attorney-General “have not been appointed by the Minister of Finance by any Legislative Instrument to be a licensing authority(s), as provided for by NLCD 89; particularly when GIBA, as an association and/or its individual members, are not statutory corporations”.
He is, accordingly, praying the court to declare that it is illegal for the NMC and the GIBA to be beneficiaries of any TV licence fees collected.
Statement of claim
A statement of claim accompanying the writ of summons stated that per Section 2(1)(a) of NLCD 226, the GBC, as part of its objective, was mandated to undertake sound, commercial and television broadcasts.
It said it was provided for in Section 8(1) of NLCD 226 that the GBC shall provide, as a public service, independent and impartial broadcasting services, sound and television for general reception in the Republic (Ghana).
It contended that GIBA was not under any obligation, whether by law or morality, to provide public service, independent and impartial broadcasting services like GBC.
It noted that Section 8(3) of NLCD 226 also provides that the GBC may engage in commercial broadcasting through the sale of paid advertisements scheduled at prescribed spots in its programme service.
It said: “Section 1(1) of the Television Licensing Act, 1966; NLCD 89 provides that except as otherwise prescribed, a person shall not install or use a television set unless there is in relation to that set a valid television receiving set licence granted by the licensing authority under NLCD 89.”
Section 13 of NLCD 89, which is the Interpretation Section of NLCD 89, defines “licensing authority”, as provided for in the said law, thus: “means the Ghana Broadcasting Corporation or any other statutory corporation appointed by the minister by legislative instrument and the corporation shall have the functions conferred on the licensing authority under this act, despite anything in the enactment under which it exists”.
“Plaintiff contends that apart from 1st defendant, all the other defendants, as well as the Film and Media Development Funds, have not been authorised as licensing authority(s) for the collection of TV licence fees; nor are they entitled to be beneficiaries, according to existing law.
“Plaintiff further contends that by reason of Section 10(c) of NLCD 226, TV licence fees collected by 1st defendant belong solely to 1st defendant and are to be deposited to the credit of 1st defendant in its bank account(s); for its sole use and not to be shared according to any phantom formula, as has been contrived between defendants to share TV licence fees, which fees are taxes in the intendment of Article 174(1) of the 1992 Constitution which provides that no taxation shall be imposed otherwise than, by or under the authority of an Act of Parliament,” the affidavit said.

Court dismisses suit challenging engagement of West Blue

 Update: Court dismisses suit challenging engagement of West Blue
A suit challenging the decision by the government to engage West Blue Ghana Limited to implement the Single Window and Risk Management System project at the country’s ports has been dismissed.
The Human Rights Division of the High Court in Accra also threw out an application for injunction against the award of the contract to the company through sole sourcing.
According to the court, the applicant, Mr Michael Kweku Djan, had failed to demonstrate how his rights had been abused, besides his failure also to disclose any reasonable cause of action.
It said the applicant also failed to provide evidence to justify the sustainability of the suit aside pre-empting the outcome of the award of the contract.
Lawyers for Mr Djan, a Tema-based clearing agent, on July 10, 2015, filed the suit and an application for interlocutory injunction and prayed the court to place an injunction on the Minister of Trade and Industry, the Minister of Finance, the Commissioner-General of the Ghana Revenue Authority (GRA), the Attorney-General and Minister of Justice and their agents from engaging West Blue Company Limited as the sole company for the implementation of the project.
Mr Djan claimed that he and others would be denied the opportunity to bid for the contract if the government went ahead to sole source it.
He had contended that the government discriminated and abused his rights and that of others by not publicising the bid process for the public to apply.
But the Attorney-General’s office filed an application which sought to strike out the suit on the grounds that Mr Djan lacked capacity as well as failed to disclose a reasonable cause of action.
Court Ruling
Delivering the decision of the court in Accra, the presiding judge, Mr Justice Anthony Yeboah, in response to Mr Djan’s claim that the government had failed to give reasons for settling on sole sourcing, said the government was not obliged to cite reasons for such actions.
 Justice Yeboah also held that the suit was pre-emptive because a purported letter from the Office of the President which directed the Ministry of Finance to engage West Blue Ghana Limited was not a binding decision from the Board of the Public Procurement Authority (PPA).
The court said the applicant had failed to demonstrate that the Board of the PPA had indeed awarded the contract to West Blue Ghana Limited and in the process discriminated against potential bidders.
“In the absence of a decision by the Public Procurement Authority Board – it is premature to say the contract was awarded. There is no evidence on the steps taken for the sole sourcing,” the court held.
Capacity and Jurisdiction
The state had challenged Mr Djan’s capacity to institute the suit but the court disagreed and ruled that Mr Djan was a Ghanaian citizen who had the right to bring such suits on either his behalf or that of Ghanaians, especially when the matter was of public interest.
The court submitted that the applicant was a human being who had the right to either bid or negotiate for the project particularly when he was an employee of a company that had the capacity to bid.
Another issue determined by the court was a challenge to its jurisdiction. On that score, the court held there were decided cases to clearly prove it had capacity to dispose of the matter.
Counsel for the applicant, Paa Kwesi Abaidoo, said he would decide whether or not to appeal after receiving a copy of the court’s decision.