Vodafone suit goes to Supreme Court

Saturday, October 24, 2009 (Front Page)

THE Commercial Court hearing the litigation involving the sale of Ghana Telecom (GT) (now Vodafone) yesterday ruled that it was not competent to deal with issues bordering on the constitutionality or otherwise of the sale.
According to the court, it was the sole preserve of the Supreme Court to interpret issues bordering on the Constitution.
Consequently, the Presiding Judge, Mr Justice Henry Kwofie, has decided to refer aspects of the suit which bordered on the constitutionality or otherwise of the sale to the Supreme Court for interpretation.
Mr Justice Kwofie, accordingly, ordered the Attorney-General and GT to furnish the court with a copy of the Sale and Purchase Agreement (SPA) on GT on or before November 3, 2009.
The matter was, accordingly, adjourned to November 23, 2009 for the court to refer specific aspects of the suit which bordered on constitutionality to the Supreme Court for determination.
The plaintiffs in the matter, Professor Agyeman Badu Akosa and five others, sued the Attorney-General and Minister of Justice, Ghana Telecommunications Company Limited and the Registrar General over the sale of Ghana Telecom to Vodafone.
The other plaintiffs, who are all members of the Convention People’s Party (CPP), are Mr Michael Kosi Dedey, Dr Nii Moi Thompson, Naa Kordai Assimeh, Ms Rhodaline Imoru Ayarna and Mr Kwame Jantuah, and they are calling for a declaration that the sale of GT is inimical to the public interest.
They are, therefore, seeking reliefs from the court, including a declaration that the agreement entered into by the government was not in accordance with due process of law and is, therefore, a nullity.
They are also seeking an order declaring that the forcible grouping of autonomous state institutions established by law — Voltacom, Fibreco, VRA Fibre Network and VRA Fibre Assets — with GT to form the purported Enlarged GT Group was unlawful and, therefore, void and of no legal effect.
The plaintiffs are further praying for an order of perpetual injunction to restrain the government from disposing of its 70 per cent share of GT to Vodafone or any other foreign company without first exploring avenues for funding and better management in Ghana, among others.
Citing authorities to buttress the court’s decision, Mr Justice Kwofie held that both parties had raised issues which bordered on constitutionality and it was, therefore, proper for the court to refer those aspects to the Supreme Court.
He said he would study the SPA, make the necessary referral to the Supreme Court and hear other aspects of the case which did not border on constitutionality.
Declining to vary whether or not an agreement executed by the government and ratified by Parliament could be challenged in the High Court, the court was of the view that that aspect would not prejudice the case in any way.
In the substantive suit, the plaintiffs are contending that the SPA entered into among the Government of Ghana, GT and Vodafone for the sale of 70 per cent of GT for $900 million was against the public interest and constituted an abuse of the discretionary powers of the government.
They said they were opposed to the unlawful establishment of the said Enlarged GT Group, as it undermined the sovereignty of the country and endangered the national security of Ghana.
According to them, the decision of the government to transfer the assets, properties, shares, equipment, among others, to Vodafone was obnoxious, unlawful and inimical to the public interest, particularly when no consideration was required to be paid by Vodafone for the stated assets.
The plaintiffs argued that the three Ministers of State and the managing director of GT who signed the agreement on behalf of the government did not exercise the requisite level of circumspection required of them as public officers in relation to public property.