Petition against presidential results - PARTIES BACK TO COURT - On April 2

March 26, 2013 (Lead Story)

THE Supreme Court will resume sitting on Tuesday, April 2, 2013 to resolve, consider and adopt issues to be raised by lawyers in a petition challenging the legitimacy of President John Dramani Mahama.
Lawyers for the parties met on Monday, March 17, 2013, following a directive from the court which advised them to meet, deliberate and arrive at issues to be set out for trial and determination, but they could not reach an agreement.
Following the communication of the deadlock to the registrar of the Supreme Court on March 19, 2013, the registrar, in another letter dated March 25, 2013, fixed April 2, 2013 as the date for the court’s next hearing.
Under the procedures of the court, the legal teams for the petitioners, the President, the Electoral Commission (EC) and the National Democratic Congress (NDC) are expected to officially announce the areas they agreed on and those they disagreed on.
The court will then consider the issues disagreed on and arrive at a solution before the hearing of the substantive case begins.
Following that, a memorandum of issues would then be set out for trial.
Key among the memorandum of issues to be set out for trial are whether or not persons were allowed to vote without biometric verification and whether or not votes cast in 11,916 polling stations should be annulled by the court.
On March 4, 2013, the petitioners filed issues to be set out for trial, while the President, on March 13, 2013, also filed an application for directions.
Both sides agreed on a request for the court to determine whether or not persons were allowed to vote without biometric verification, among others.
However, the President prayed the court to decline the petitioners’ prayer for the court to allow parties in the case to adopt audio-visual aids in the presentation of evidence.
On the petitioners’ prayer that parties in the case be made to exchange documents to be relied on seven days before the trial, the President is pleading with the court to reject that request.
President Mahama is also praying the court to decline the petitioners’ suggestion that seven days before the trial, all parties must be made to present a list of witnesses and a brief summary of the nature and relevance of each witness’ testimony to enable the court to determine its probative value.

Agreed issues on record
President Mahama has, however, not opposed the petitioners’ suggestion that the hearing of the petition should take two months.
The parties are also not opposed to the application on whether or not persons were allowed to vote without biometric verification.
The issues that are likely to be set out for trial include: whether or not persons were allowed to vote without undergoing prior biometric verification and whether or not votes cast exceeded the ballot papers issued to voters at polling stations during the polls in some polling stations.
The court will also decide whether or not to annul votes cast in 11,916 polling stations.
The EC has said the petitioners had failed to fully comply with the court’s orders to supply it with further and better particulars.

The stalemate
The court, on March 14, 2013, gave the legal teams in the case seven days to sit and narrow issues for determination and indicate the areas they did not agree on for the court to resolve.
However, barely seven days after the court’s directive, lawyers for the petitioners, President Mahama, the EC and the NDC met, deliberated and hit a deadlock.
Following the stand-off, the legal team for the petitioners, on March 19, 2013, wrote to the registrar of the Supreme Court and indicated that they and lawyers representing President Mahama, the EC and the NDC met and agreed on relatively few issues.
They officially wrote to the registrar to indicate the outcome of the meeting and prayed the registry to set a short date to enable the parties to appear before the court for resolution.
The letter, dated March 19, 2013 and signed by Mr Akoto Ampaw of Akufo-Addo, Prempeh and Co. and addressed to the registrar of the Supreme Court, stated, “This is formally to notify the Supreme Court that following the order of the court, counsel for all the parties met in an attempt at reaching an agreement on the memorandum of issues as set out in the applications for direction and further directions.
“We however, regret to inform the court that with the exception of the relatively few number of issues agreed on, we were unable to reach a substantial agreement on the issues.”
“We would, accordingly, be grateful if a short date could be fixed for the parties to appear in court to take directions as to the issues and the mode of trial in order to expedite trial of the petition,” it said, adding, “We will, at the hearing, give notice to the court with respect to the issues we managed to reach agreement on.”
The letter was copied to the lawyer for President Mahama, Mr Tony Lithur; counsel for the EC and counsel for the NDC, Mr Samuel Codjoe.
Lawyers for the parties in the case, as a sign of respect to the court, have declined to disclose the issues they agreed on and those they disagreed on.
The petitioners, Nana Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed the petition at the highest court of the land, praying the court to annul votes cast in 11,916 polling stations due to what they termed “gross and widespread irregularities”.
They had, in a December 28, 2012 petition, called for the annulment of votes cast in 4,709 polling stations but amended their petition on February 9, 2013 after the court had granted them permission to do so and cited 11,916 polling stations as the total number of polling stations where alleged irregularities were recorded.
The three had initially called for the cancellation of 1,342,845 valid votes cast during the election at 4,709 polling stations due to the alleged irregularities recorded during the elections but are now urging the Supreme Court to pronounce an additional 3,327,659 valid votes cast as invalid.
The Supreme Court, on February 7, 2013, granted the petitioners’ prayer of amendment and, accordingly, allowed the amendment.
President Mahama, who is the first respondent, the EC and the NDC, the second and third respondents, respectively, have filed their responses.
They have all refuted the petitioners’ allegations on the grounds that President Mahama won the elections legitimately in the full glare of the media, local and international election observers.
The NDC applied to join the petition on December 31, 2012 and was duly granted permission by a 6-3 majority decision of the Supreme Court on January 22, 2013.
On March 14, 2013, the Supreme Court unanimously dismissed applications filed by 327 people who sought to join the petition. The nine-member panel held that the presence of the 327 applicants “was neither necessary nor convenient”, adding that their being allowed to join would defeat the purpose of the Supreme Court (Amendment) Rules 2012 (C. 1. 74) which calls for an expeditious trial in an electoral petition.
Per the court’s ruling, nobody can join the petition.
The matter is being heard by the court, presided over by Mr Justice William Atuguba, with Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice P. Baffoe-Bonnie, Mr Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo as members.
Writer’s e-mail: mabel.baneseh@graphic.com.gh

Court directs state to pay former AG's pension

March 26, 2013 (Front page)

THE Fast Track High Court yesterday ordered the state to pay the monthly pension of the former Auditor-General, Mr Edward Dua Agyeman, with effect from June 2012.
It further directed that the amount should be equivalent to the salary of the current Auditor-General, which is also equivalent to that of a justice of the Court of Appeal.
 According to the court, the gratuity and the pension due Mr Dua Agyeman were in fulfilment of a constitutional obligation owed him by the Republic, since he was appointed under Article 70 (1) of the 1992 Constitution.
Therefore, by the injection of Article 71 (1), the salaries, allowances, facilities and privileges of Mr Dua Agyeman were to be determined by the President, on the recommendations of a committee of not more than five persons appointed by the President, in accordance with the advice of the Council of State.
Granting nine out of 10 reliefs sought by the applicant, the court, presided over by Mr Justice Paul Uuter Dery, also awarded costs and damages totalling GH¢20,000 against the state.
 The GH¢20,000 was awarded the plaintiff following his assertion that he had suffered “undue hardships” as a result of the state’s persistent refusal to accord to him his constitutional entitlements.
The state is expected to pay GH¢10,000 in general damages and GH¢10,000 in costs.
The plaintiff’s gratuity consists of three months’ salary for every year he served in the Audit Service.
Mr Justice Dery also declared that any review of the conditions of pension payable to a former holder of the position of Auditor-General, as will be determined by the report of any Presidential Committee on Emoluments of Article 71 Office Holders, was applicable to Mr Dua Agyeman.
However, the court declined to grant the plaintiff’s request for an order for the provision of free medical and dental facilities for plaintiff and his spouse.
Mr Dua Agyeman sued the Attorney-General through his lawyer, Mr Godfred Dame Yeboah, after several requests for the payment of his gratuity and pension, as conveyed by his letter of appointment, had failed.
The plaintiff retired from the Audit Service on May 19, 2010 and in response to his demand for the payment of his gratuity and pension, he received a letter dated October 18, 2010 and signed by a Deputy Chief of Staff, Dr Valerie Sawyerr, which informed him of the decision of the government not to pay him retirement benefits in accordance with Article 71 (1) of the 1992 Constitution.
According to the plaintiff, the letter indicated that he (Mr Dua Agyeman) was a political appointee and not a career staff of the Audit Service or any other public service and, therefore, did not qualify for pension.
Dissatisfied with the position of the government, Mr Dua Agyeman instituted the action and requested for reliefs which were granted by the court.
The reliefs granted by the court included a declaration that the plaintiff was entitled to the payment of gratuity and pension in accordance with the recommendations of the Reports on a Review of Facilities and Privileges of Article 71 Office Holders in 2008  (the Chinery Hesse Report).
An order was also granted for the payment of a monthly pension equivalent to the salary of the Auditor-General currently at post, with effect from May 2010 (when plaintiff retired) to June 15, 2012, the date of issue of the instant writ.
 Also granted was interest on the amount at the prevailing bank rate and an order for the payment of a monthly pension (after 15th June, 2012) equivalent to plaintiff’s salary as adjusted from time to time in accordance with the salary of the Auditor-General at post, which is equivalent to that of a Justice of the Court of Appeal and was being paid to plaintiff’s predecessor.
Mr Justice Dery also granted a request for an order for the provision of one free chauffeur-driven vehicle with associated expenses to be borne by Mr Dua Agyeman.

Background to case
The contention of the plaintiff was that before being appointed as the substantive Auditor-General of the Republic of Ghana, he had, from April 12, 2001 to January 29, 2003, served as acting Auditor–General of the Republic of Ghana pursuant to an appointment  by the President  of the Republic of Ghana and also as Deputy Auditor-General of Ghana (from July 1, 1987 to 1989), as well as the Director of Administration of the Non-Performing Assets Recovery Trust (from 1990 to 1994).
Mr Dua Agyeman averred that the letter by which he was appointed as the substantive Auditor-General on January 30, 2003 indicated that other terms and conditions of his appointment would be communicated in due course.
“Further to the above, by a letter dated the 5th day of May, 2003 signed by the Minister of Finance and Economic Planning, full details of the terms and conditions attached to plaintiff’s position were duly provided to him and same included ‘Gratuity and pension as may be determined by the President, acting in accordance with the advice of the Council of State’,” the statement of claim said.
It argued further that the position of the Auditor-General of Ghana was not a “political appointee” and as such Article 187 of the Constitution, which established the position of the Auditor-General and his function, also stipulated that provisions of Article 146, relating to the removal of a Justice of the Superior Court of Judicature from office, shall apply to the Auditor-General.
The plaintiff argued that the Chinery-Hesse Committee Report was presented to the President of the Republic and same took effect while he was in office and upon his retirement, he was entitled to enjoy the facilities made available in the committee’s report.
“In the light of the above, plaintiff’s predecessor is being paid a pension consisting of his monthly salary at the time of his retirement (as adjusted from time to time in accordance with the salary of the Auditor-General currently at post, which is equivalent to that of a Justice of the Court of Appeal),” the plaintiff averred, and argued that such benefits were applicable to him.
After considering the plaintiff’s arguments, the court awarded his prayer, except his request for free medical and dental provision for him and his spouse.
Writer’s e-mail: mabel.baneseh@graphic.com.gh

NPP Chairman in court over role in Turkey gold scandal

March 2013 (www.graphic.com.gh)

 A businessman, Joseph Kwame Donkor, was Friday put before the Accra Circuit Court for allegedly playing a role in the illegal shipment of 1.5 tonnes of gold worth $52 million to Turkey.

He pleaded not guilty to two counts of abetment and was granted bail in the sum of GH¢100,000, with two sureties, one to be justified.

He was also ordered to report himself to the BNI on Fridays.

Counsel for Donkor, Mr T. Azu, prayed the court, presided over by Mrs Justice Patience Mills Tetteh, to grant his client bail because he was a known personality who had businesses and was also the Chairman of the Gomoa  West Constituency of the NPP, for which reason he would co-operate with the court when granted bail.

The case was prosecuted by Deputy Superintendent of Police (DSP) Mr A. A. Annor.

Two other persons who are allegedly involved in the illegal shipment of the gold are Peter Kofi Bedzra, a miner, and Frank Mould, alias Ebo, a forwarding agent.

Bedzra was the first to be put before the court on February 26, 2013 and granted bail in the sum of GH¢100,000, with three sureties.

He is also expected to report himself to the BNI on Fridays.

On March 19, the second accused person, Mould, was first put before the court but was remanded to reappear on April 8, 2013.

According to the prosecution, Donkor abetted Bedzra to ship the gold to Turkey without undergoing the stipulated legal requirement before the shipment.

The prosecution said on December 29, 2012, a chartered cargo plane arrived at the Kotoka International Airport to carry the consignment to Dubai.

On arrival at the airport, Donkor booked room reservations for the seven-member crew of the cargo plane at the Golden Tulip Hotel in Accra by using Joedith Ventures Limited, while the crew was handled by Menzies-Aviance Handling Services Company Limited.

On December 31, 2012, Donkor, another person whose name was only given as Believer and others saw to it that Mould processed the consignment for export.

It said while the processing was going on, Donkor kept communicating with Believer and a representative of Menzies on phone until the cargo aircraft left the KIA  with the 30 boxes of gold around 10:30 p.m.

The prosecution said the cargo aircraft carrying the gold was, however, intercepted and detained in Turkey because documents accompanying the gold appeared not to be genuine.

On February 26, 2013, Bedzra pleaded not guilty to one count of forgery of document, contrary to Section 158 of the Criminal Code 1960, Act 29, while Mould  pleaded not guilty to two counts of abetment of crime and uttering forged documents, contrary to Section 169 of the Criminal Procedure Code.

According to the prosecution,  Bedzra, on December 31, 2012, forged certain documents, including Geological Survey Department certificate for mineral samples numbered OC5/6/12/13; Bank of Ghana Foreign Exchange form 4A with serial number 14317261, and Goods Movement certificate No. A296968.

He allegedly used the said documents to enable him to export 1,500 kilogrammes of gold to Dubai.

Mould, for his part, on December 31, 2013 aided and abetted Bedzra to forge the documents, as well as uttered forged documents to aid Bedzra evade the requirement under the law by exporting the 1,500 kilogrammes of gold.

The facts of the case are that Mould, who is a forwarding agent, operates at the KIA and in December 2012 Valid Moradi Moghaddam and his partners, all Arabs, arrived in Ghana to purchase gold.

They got in touch with Omanye Gold Mining Limited which sold a quantity of gold weighing 1.5 tonnes and valued at $52 million to the Arabs.

According to the prosecution, the buyers packed the gold into 30 boxes for export to Dubai.

It informed the court that Mould was contracted to process the consignment for export, and in the process he aided Bedzra to forge documents of the Geological Survey Department, the Bank of Ghana  and goods movement certificate in order to ship the said 30 boxes through customs and other security checks at the KIA and subsequently exported the said consignment to Dubai on December 31, 2012.

$91.7 m judgement debt can collapse NIB

March 22, 2013 (Page 22)

THE National Investment Bank (NIB) has stated that the $91.7 million judgement debt awarded against it by the Commercial Court has the potential of collapsing the bank.
The bank, which has appealed against the court’s order, has revealed that the amount is far in excess of the entire net worth of the bank.
In its motion for stay of execution filed on March 12, 2013 at the Commercial Court Division of the Fast Track High Court, the NIB said the debt “is far in excess of the entire net worth of the first defendant/applicant bank, the payment of which, if at all feasible, would lead to the total collapse of its business, with far-reaching consequences for individual depositors, corporate customers and the entire banking system of the country”.
The bank is, therefore, praying the Commercial Court to stay execution of its order pending the outcome of an appeal it has filed on the grounds that the bank will suffer irreparable damage if the court’s order, dated February 21, 2013, is not stayed and the appeal succeeds in the long run.
According to the bank, its appeal had a “high likelihood of success” because the trial judge, Alhaji Justice Amadu Tanko, failed to consider the bank’s evidence which led to the fact that the bank was not liable to any entity.
Hearing of the motion for stay of execution has been fixed for May 8, 2013.

Motion on notice for stay of execution
An affidavit in support of the motion for stay of execution deposed by the Head of Legal of the NIB, Mr Michael Amarfu-Dey, said the court’s finding that the bank failed to cross-examine a witness with respect to the disbursement of $24 million from the promissory notes was not supported by the evidence on record.
It said apart from the fact that the NIB’s appeal stood a high chance of success, the Dominion Corporate Trustees, “just like its predecessor, Standard Bank Offshore Trust Company Limited, as per the endorsement on its Writ and Statement of Claim, is an offshore company registered and operating in Jersey, Channel Islands, a jurisdiction renowned for its secret legal arrangements to shield companies from taxes and the attachment of their assets”.
For that reason, the bank held that its business and tangibles were located within the jurisdiction of the court and in the event of success upon appeal, the NIB success would be rendered nugatory as it would virtually find it impossible to recover the sum now ordered to be paid in the judgement.
“That this Honourable Court has no means available to it to determine the net worth of the plaintiff/respondent for purposes of making a decision as to whether and the extent to appeal which it could repay the sum so ordered in the judgement in the event of the appeal succeeding,” the affidavit in support stated.
 The plaintiff/respondent in this instance is Dominion Corporate Trustees Limited.
In confirmation of the uncertainty surrounding Dominion Corporate Trustees Limited, the bank held that the status or nature the plaintiff in the case changed at the inception of the case from “Standard Bank Offshore Trust Company Limited, which in itself was suing for and on behalf of certain investors in promissory notes such as Sphynx Capital Market PCC Investors and Tricon Trade Management Limited, to Dominion Corporate Trustees Limited”.
“That there is evidence on record which irresistibly leads to the conclusion that the substitution was motivated substantially by the desire to hide the fact that an amount of US$24 million, representing a little over  50 per cent of the US$45,412,790, being the proceeds of the sale of the promissory notes, was paid to Standard Bank Jersey Limited for the benefit of a company known as Sphynx Ltd, USA, on August 24, 2007,” the affidavit said.
It further held that the $24 million which was paid into an account numbered 000153885 with HSBC Bank USA and the beneficiary, Sphynx Ltd, USA, operated an account numbered 58081144 with the aforesaid Standard Bank Jersey Limited.
The affidavit stated that Standard Bank Jersey, the recipient of the $24 million on behalf of Sphynx Ltd USA, was related to Standard Bank Offshore Trust Company Jersey Limited, the entity that first instituted the present action.

Sphynx Ltd “Missing in Action” and bankrupt
It said all attempts on the part of the bank to locate Sphynx Ltd, USA had proved futile, adding, “The only evidence from the Internet and other searches showing that a company going by that name had gone into bankruptcy and proceedings to that effect were brought and determined in 2006 before the United States Bankruptcy Court for the Southern District of New York. This case is reported in 351 B R 103 (Bank. S D N Y September 6, 2006).”
“That in the aforesaid proceedings before the United States Bankruptcy Court for the Southern District of New York, it is stated that Sphynx Limited, USA was a Cayman Island company, registered offshore with its centre of non-main interest being the United States of America,” the affidavit said.
It said the striking coincidence was that one of the companies on whose behalf the suit had been brought was a company registered and operating offshore Mauritius, known as “Sphynx Capital Markets PCC, a special purpose vehicle established and owned by Iroko Securities, the transaction advisors to the deal that resulted in the current action by the Plaintiff/ Respondent”.
The bank, accordingly, prayed the court to, in the interest of justice and fairness, “take due cognisance of the linkage between the payment to Sphynx Limited USA of over 50 per cent of the proceeds of the sale of the promissory notes and the current claim by the plaintiff, partly on behalf of Sphynx Capital Markets PCC, a company owned by the transaction advisors who were the main architects of this deal”.
It said given the “complicated  and secretive nature of the entities involved in this deal, and emerging evidence of self-dealing”, the bank would be placed in a  significantly difficult situation were it to pay the sum ordered and subsequently reclaim the same upon success in its appeal.
According to the NIB, it was easier for Dominion Corporate Trustees Limited to recover its debt should the appeal fail, since the bank was a reputable bank that had its centre of main interest here in Ghana, with tangible assets within the jurisdiction of the court and which Dominion Corporate Trustees Limited could attach in execution of its judgement.
The bank said “in all the circumstances of this case the balance of hardship tilts heavily against the bank” in the event that it was compelled to pay the said judgement pending the determination of its appeal, “which has a high likelihood of success”.

Notice of Appeal
In a notice of appeal dated March 1, 2013, the bank held that the trial judge erred in law when he excluded from evidence which clearly demonstrated that Iroko Securities Limited, the plaintiff’s arrangers of the discounting of the impugned promissory notes, knew that Mr Gyimah lacked the requisite authority to bind the NIB in a $60 million transaction and that exclusion of evidence had resulted in a substantial miscarriage of justice.
It said the trial judge erred in law when he held that the presumption of regularity contained in Section 142 of the Companies Act, 1963 (Act 179) had not been rebutted by evidence of previous dealings with the NIB (the issuer of the promissory notes) and Iroko Securities Limited (the arranger of the promissory notes), which evidence of previous dealings clearly indicated that they knew or ought reasonably to have known that Mr Gyimah did not have the requisite authority to bind the NIB in a transaction worth $60 million.
According to the appellant, the trial judge erred in law when he failed to realise that the presumption of regularity contained in Section 142 of the Companies Act, 1963 (Act 179) did not apply to banking transactions that contravened the single obligor limit as contained in Section 42 of the Banking Act 2004 (Act 673).
Arguing further, the bank held that the trial judge erred in law when he held in the face of contrary evidence that the plaintiff was an innocent third party and was, therefore, immune from the use of contrary evidence to rebut the presumption of regularity in the performance of the duties of Mr Gyimah as Managing Director of the NIB.
It went on further to submit that the trial judge erred in law when he held that the NIB had failed to produce evidence of fraud or other material illegality and, therefore, the holders in due course of the said promissory notes were entitled to the presumption of validity of such notes under the Bills of Exchange Act, 1960 (Act 55).
According to the bank, the trial judge erred in law when he held that when an allegation of fraud had been made in a civil suit, the burden of proof was beyond reasonable doubt “as opposed to proof on a preponderance of probabilities”.
According to the bank, it was wrong for the trial judge to dismiss the NIB’s counter claim, adding that “the judgement is against the weight of evidence”.
Writer’s e-mail: mabel.baneseh.graphic.com.gh

Two in court over illegal export of gold to Turkey

 March 20, 2013 (Page 3)

Two persons who were allegedly involved in the illegal shipment of 1.5 tonnes of gold valued at $52 million to Turkey were Tuesday put before the Accra Circuit Court.

Peter Kofi Bedzra, a miner, who was first arraigned before the court on February 26, 2013, was granted bail in the sum of GH¢100,000, with three sureties.

He is also expected to report himself to the Bureau of National Investigations (BNI) on Fridays.

The second accused person, Frank Mould, alias Ebo, a forwarding agent, was first put before the court yesterday and remanded to reappear on April 8, 2013.

The court was presided over by Mrs Justice Patience Mills-Tetteh, a High Court judge with additional responsibility as a Circuit Court judge.

Bedzra has pleaded not guilty to one count of forgery of document, contrary to Section 158 of the Criminal Code 1960, Act 29, while Mould has pleaded not guilty to two counts of abetment of crime and uttering forged documents, contrary to Section 169 of the Criminal Procedure Code.

Bedzra is alleged to have forged certain documents, including a Geological Survey Department certificate for mineral samples, numbered OC5/6/12/13; a Bank of Ghana foreign exchange form 4A with serial number 14317261 and a goods movement certificate No. A296968, by using the said documents to enable him to export 1,500 kilogrammes of gold to Dubai.

Mould, for his part, is alleged to have aided and abetted Bedzra to forge the documents, as well as uttering forged documents, to aid Bedzra to evade the requirement under the law by exporting the 1.5 tonnes of gold.

The facts of the case, as narrated by Deputy Superintendent of Police (DSP) Mr A. A. Annor, are that Mould, who is a forwarding agent, operates at the Kotoka International Airport (KIA).

In December 2012, one Valid Moradi Moghaddam and his partners, all Arabs, arrived in Ghana to purchase gold.

They got in touch with Omanye Gold Mining Limited, which sold a quantity of gold weighing 1.5 tonnes and valued at $52 million to them.

According to the prosecution, the buyers packed the gold into 30 boxes prepared for export to Dubai.

It informed the court that Mould was contracted to process the consignment for export and in the process aided Bedzra to forge documents of the Geological Survey Department, a Bank of Ghana foreign exchange form and a goods movement certificate in order to ship the said 30 boxes through Customs and other security checks at the KIA and subsequently exported the said consignment to Dubai on December 31, 2012.

Investigations are ongoing.

Court issues bench warrant for arrest of 2

 March 20, 2013 (Page 3 Lead)

The Accra Circuit Court Tuesday issued a bench warrant for the arrest of two persons — a chief and an administrator of the Lashibi Stool — for allegedly defrauding the Manager of Abundant Grace Academy to the tune of GH¢360,000.

Nii Agyemang II, the stool administrator, and Nii Assinu II of the Lashibi Stool in Accra were expected to appear before the court, presided over by Mrs Justice Patience Mills Tetteh, a High Court judge with additional responsibility as a Circuit Court judge, to answer conspiracy and defrauding by false pretence charges but they failed to do so.

A third accused person, Nii Kabu Akwatiah, the Mankralo of the Lashibi Stool, was present in court and was granted bail in the sum of GH¢400,000, with three sureties, to reappear on April 9, 2013.

Akwatiah had pleaded not guilty to two counts of conspiracy and defrauding by false pretence.

The three are alleged to have, in 2007, received GH¢360,000 from the complainant, Mr Charles Owusu Ansah, an educationist and manager of Abundant Grace Academy, after selling him 45 acres of land.

Mr Owusu-Ansah informed the court that he was currently paying interest of GH¢20,000 on a loan he took from the UT and the Barclays banks to purchase the land.

“The situation is so bad the two banks are after my school and my house. I have pursued the case for the past three years, all to no avail. All I need is my money back,” a distraught Mr Owusu-Ansah informed the court.

He said he intended to expand his school and, therefore, purchased the land from the accused persons but officials of the Tema Development Corporation (TDC) brought down the school’s signposts, on the grounds that the land belonged to the TDC.

Prosecuting, Chief Inspector Isaac Dedoo told the court that the complainant planned to expand his school some time in 2007 and, accordingly, approached the accused persons to purchase the said land.

According to the prosecution, the accused persons delegated their subordinates, who led Mr Owusu-Ansah to a site behind the Emefs Estate and showed him a stretch of land around Community 14.

After negotiations on the said parcel of land, the accused persons collected the GH¢360,000, both in cash and cheque, from Mr Owusu-Ansah and subsequently gave him a site plan for the 45 acres of land.

Mr Owusu-Ansah then proceeded to the Lands Commission to conduct a search on the land but he was informed that the land belonged to the TDC and that it was sub-leased to Regimanuel Gray Limited, a real estate company, in 1996.

The accused persons were subsequently charged with the offences after investigations.

Petition against presidential results - Parties deadlock over procedure

 March 20, 2013 (Front Page)

Lawyers for parties in the petition challenging the legitimacy of President John Dramani Mahama are deadlocked on issues to be set out for determination by the Supreme Court.

The court, on March 14, 2013, gave the legal teams in the case seven days to sit and narrow issues for determination and indicate the areas they did not agree on for the court to resolve.

However, barely seven days after the court’s directive, lawyers for the petitioners, President Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC) met, deliberated and hit a deadlock.

Following the standoff, the legal team for the petitioners has written to the registrar of the Supreme Court to indicate the outcome of the meeting and prayed the registry to set a date to enable the parties to appear before the court for resolution.

The letter, dated March 19, 2013, signed by Mr Akoto Ampaw of Akufo-Addo, Prempeh and Co. and addressed to the registrar of the Supreme Court, stated, “This is formally to notify the Supreme Court that, following the order of the court, counsel for all the parties met in an attempt at reaching an agreement on the memorandum of issues as set out in the applications for direction and further directions.

“We,  however, regret to inform the court that with the exception of the relatively few number of issues agreed on, we were unable to reach a substantial agreement on the issues.”

“We would, accordingly, be grateful if a short date could be fixed for the parties to appear in court to take directions as to the issues and the mode of trial in order to expedite trial of the petition,” the letter continued, adding, “We will, at the hearing, give notice to the court with respect to the issues we managed to reach agreement on.”

The letter was copied to the lawyer for President Mahama, Mr Tony Lithur; counsel for the EC and counsel for the NDC, Mr Samuel Codjoe.

Lawyers for parties in the case, as a sign of respect to the court, were tight-lipped on the issues they agreed and disagreed on.

They are, however, expected to announce their positions to the court when the registrar formally communicates a date to them to appear in court.

Stalemate issues in the court’s record

President Mahama is praying the court to decline the petitioners’ prayer for the court to allow parties in the case to adopt audio-visual aids in the presentation of evidence.

On the petitioners’ prayer that parties in the case be made to exchange documents to be relied on seven days before the trial, the President is pleading with the court to reject that request.

President Mahama is also praying the court to decline the petitioners’ suggestions that seven days before the trial, all parties must be made to present a list of witnesses and a brief summary of the nature and relevance of the testimony of each witness to enable the court to determine its probative value.

Agreed issues on record

President Mahama has, however, not opposed the petitioners’ suggestion that the hearing of the petition take two months.

The parties are also not opposed to the application on whether or not persons were allowed to vote without biometric verification.

The issues that are likely to be set out for trial include whether or not persons were allowed to vote without undergoing prior biometric verification and whether or not the votes cast exceeded the number of ballot papers issued to voters at polling stations during the polls in some polling stations.

The court will also decide whether or not to annul votes cast in 11,916 polling stations, but the EC has indicated that the petitioners have failed to fully comply with the court’s orders to supply it with further and better particulars.

 The presidential candidate of the NPP in the December 2012 elections, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, filed the petition at the highest court of the land praying the court to annul votes cast in 11,916 polling stations due to what they termed “gross and widespread irregularities”.

They had, in a December 28, 2012 petition, called for the annulment of votes cast in 4,709 polling stations but amended their petition on February 9, 2013 after the court had granted them permission to do so and cited 11,916 polling stations as the number of polling stations where alleged irregularities were recorded.

The three had initially called for the cancellation of 1,342,845 valid votes cast during the election at 4,709 polling stations due to the alleged irregularities recorded during the elections but are now urging the Supreme Court to pronounce an additional 3,327,659 valid votes cast as invalid.

The Supreme Court, on February 7, 2013, granted the petitioners’ prayer of amendment and accordingly allowed the amendment.

President Mahama, who is the first respondent; the EC and the NDC, the second and third respondents, respectively, have filed their responses.

They have all refuted the petitioner’s allegations on the grounds that President Mahama won the elections legitimately in the full glare of the media, local and international election observers.

The NDC applied to join the petition on December 31, 2012 and was duly granted permission by a 6-3 majority decision of the Supreme Court on January 22, 2013.

On March 14, 2013, the Supreme Court unanimously threw out applications filed by 327 people who sought to join the petition.

In a unanimous decision, the nine-member panel held that the presence of the 327 applicants “was neither necessary nor convenient”, adding that their being allowed to join would defeat the purpose of the Supreme Court (Amendment) Rules 2012 (CI 74) which calls for an expeditious trial in an electoral petition.

The effect of the court’s decision is that the door has been shut on any person or group of persons who may harbour the intention of joining the petition.

$28.5 m judgement debt - IT'S A SCAM - No court awarded it to Sweaters and Socks - AG

March 19, 2013 (Lead Story)

 The Attorney-General and Minister of Justice, Mrs Marietta Brew Oppong Appiah, is challenging a purported $28.5 million judgement debt that has been awarded against the state.

Documents filed by the Attorney-General’s Department seeking to set aside the said judgement indicate that no court had awarded the $28 million to Sweaters and Socks, the plaintiff in the case.

To prove her resolve to ensure that the money was not paid to the claimant, Mrs Oppong Monday appeared at the High Court, presided over by Mr Justice Godwin Gabor, and prayed the court  not to entertain the claimant because it had no cause for action.

“The applicants should show us where there is an order for payment. There is no claim for an order of payment to be awarded or whatsoever,” she emphasised.

But a visibly upset counsel for the plaintiff, Mr George Eshun, who disagreed with the state, turned to the A-G and said, “She should not let mud be thrown at her.”

In an apparent response to the state confiscating the asset of his client, Mr Eshun informed the state that it was expected to account to his client.

Contempt against acting BoG Governor

The court was expected to deliver its ruling on whether or not to cite the acting Governor of the Bank of Ghana (BoG), Dr H. K. Wampah, for contempt of court for failing to obey a court order to pay the money to the plaintiff but had to adjourn proceedings because the governor was absent.

Counsel for the acting governor, Mr Samuel Kodzo, informed the court that his client was on a national assignment and could not make it to court.

Since contempt of court was a quasi-criminal issue, the physical presence of the acting governor was needed for the court to give its ruling.

The court, therefore, adjourned proceedings to Wednesday, March 20, 2013.

It is also expected to hear the state’s motion to set aside orders and proceedings of the High Court, presided over by Mrs Justice Elizabeth Ankumah, which granted the plaintiff permission to file estimates that eventually ended at $28.5 million.

The court was expected to rule on the contempt application brought against Dr Wampah but the Attorney-General filed an inter-pleader, arguing that there was no foundation upon which the contempt application should be filed.

A Chief State Attorney, Mr Clarence Kuwornu, also prayed the court not to commit the acting governor for contempt of court and rather suggested that the court  hear the state’s version in order to arrive at a conclusion.

Mrs Oppong was accompanied to court by the Solicitor-General, Mrs Amma Gaisie; a Principal State Attorney, Mrs Sylvia Adusu, and other state attorneys.

The Background to the case:

The plaintiff, Sweater and Socks, dragged the Attorney-General and seven occupants of its factory which was confiscated by the state through AFRC Decree 38 to court in 1994.

The other defendants in the case are the National Industrial Company, the African Bagg Company Limited, Madam Sophia’s Company, Poly Products Limited, Fay International Limited and United Waters Limited and Golden Tower Limited, all tenants of the plaintiff’s property.

It requested the court to declare that the true legal position now was that Sweater and Socks had not been confiscated and was, therefore, entitled to carry out its normal business operations.

The company also sought an order for the recovery of possession of the factory premises and all the machinery and or equipment thereof from the hold of the National Industrial Company.

On April 8, 2003, the High Court, presided over by Mrs Justice H. Inkumsah Abban, gave judgement in favour of the plaintiff for all the reliefs claimed.

The court held that plaintiff company was entitled to all its reliefs, as endorsed, and in 2010 the plaintiff obtained leave of the court to recover possession of the factory premises and duly recovered possession.

Consequently, plaintiff  obtained a garnishee order nisi and garnishee order absolute on August 15, 2012 and September 12, 2012, respectively, ordering the BoG  to pay the plaintiff the sum of US$28,595,600.

Following the grant of the reliefs sought by the plaintiff and subsequent orders of the court and the failure of the BoG to pay the money, the plaintiff instituted the contempt proceedings against Dr Wampah.

The Attorney-General’s intervention

But the state is arguing that the garnishee orders were born out of void procedures and orders and for that reason they were “null and void and of no effect and should be set aside”.

“Furthermore, the plaintiff, in its writ of summons and statement of claim, never made a claim for recovery of any sum of money or for damages, whether general or special,” the state has argued.

It also argued that the judgment of Justice Abban (Exhibit AG3) never made any orders for the recovery of money by the plaintiff from the 1st and 2nd defendants and that assuming without admitting that the ruling (Exhibit AG8) of Justice  Ankumah  was valid, the said ruling never ordered the payment  of any money.

In a motion challenging the plaintiff, the Attorney-General’s Department is praying the High Court to set aside as void orders and proceedings of the High Court.

Consequently, the state is praying the High Court to set aside the following:

•  An amended estimates of costs of machinery and running of Sweater and Socks factory filed by the plaintiff on May 27, 2011.

•  The order of Justice Ankumah dated July 27, 2011 accepting the amended estimates.

•  The subsequent ruling of Justice Ankumah dated the 16th day of May, 2012 given the trial proceedings /hearing.

.  The garnishee order nisi dated August 15, 2012 which was granted by Justice S. H. Ocran and another garnishee order absolute  dated September 12, 2012 which was granted by Justice Ocran.

One of the reliefs granted by the judgement of Justice Abban was for the defendants to provide “comprehensive account of all use and/ or transactions carried out by the 2nd defendant on the premises of the factory floor and or use of any equipment by same.

An affidavit in support of the state’s motion deposed to by Mr Kuwornu said on February 14, 2011, the plaintiff obtained a further order for the Attorney-General and the National Industrial Company to render accounts within 14 days.

But because of the failure of the Attorney-General and the National Industrial Company to render account within the specified time, the plaintiff, on May 27, 2011, “filed on several A4 sheets of paper what it described as Amended Estimates of Costs of Machinery and Running of Sweaters and Socks Factory”(herein referred to as the “Amended Estimates” ) putting the total of its estimates at US$28,595,600”.

No rule or procedure on estimates

According to the affidavit in support, there was no rule of law or procedure that gives a plaintiff the authority to file “estimates” when a defendant has failed/refused/neglected to comply with a judgment to render accounts.

“That filing of ‘estimates’ by a plaintiff is not a procedure for enforcing a judgement/order for a defendant to render accounts,” the affidavit pointed out and further argued, “Justice Ankumah, on July 27, 2011, nevertheless accepted the amended estimates filed by the plaintiff in lieu of the accounts to be rendered by the Attorney-General and the National Industrial Company.

It said Mrs Justice Ankumah “had no jurisdiction to accept the amended estimates filed by the plaintiff in lieu of the accounts to be rendered by the Attorney-General and the National Industrial Company.

According to the A-G’s Department, the ruling, which it had attached as an exhibit, had the effect of “reviewing/amending the judgement of Justice  Abban, which simply required the A-G and the National Industrial Company to render accounts.

The affidavit in support said on May 16, 2012, the certificate issued under 15(1) of the State Proceedings Act, 1998 (Act 555) which ordered  the BoG to pay the plaintiff the sum of $28.5 million “did not represent the judgement of Justice Ankumah, let alone that of Mrs Justice Abban, and are, therefore, null and void and of no effect and ought to be set aside”.

Judge threatens to blacklist reporters for poor coverage

 March 16, 2013 (Page 3 Lead)

A Justice of the Financial Division of the Accra Fast Track High Court has threatened to blacklist any media house that continuously publishes misleading reports on the GH¢51.2 million criminal case involving Alfred Agbesi Woyome, a businessman.

“Any media house which publishes misleading reports won’t be allowed in my court. This is a court of record and things must be done properly,” the trial judge, Mr Justice John Ajet-Nasam, said sternly.

He, therefore, advised journalists who needed clarification to get copies of court proceedings after each hearing to avoid publishing inaccurate reports.

He further indicated that reporters were free to listen to recordings with headphones if the need arose to avoid misleading the public with inaccurate reports.

Turning to reporters in the courtroom, Mr Justice Ajet-Nasam said, “I have said time and again that you can access the record of proceedings at the end of each hearing in order to report accurately.”

His warning came against the backdrop of what the court observed as misleading reports on the case by four media houses at the last hearing of the case.

Justice Ajet-Nasam, who has, from the beginning of the trial on February 6, 2012, exhibited warmth towards the media, also had issue with how an Accra-based private radio station, Peace FM, reported the March 5, 2013 proceedings of the court.

A Chief State Attorney, Ms Cynthia Lamptey, was the first to raise concern over the way the Daily Guide and The Enquirer reported the case at the last hearing.

Counsel for Woyome, Alhaji Musah Ahmed, also expressed worry over The Ghanaian Times headline of March 6, 2013 which read: “No contract was awarded Woyome – Witness”, since there had been no submission to that effect on March 5, 2013.

Noting all the worries of the parties in the case, the trial judge said he also listened to Peace FM’s report on the last proceedings of the court and was not pleased with the way the radio station sensationalised the proceedings.

 He, subsequently, advised all media houses to adhere to the basic tenets of the journalism profession or risk being thrown out of the court.

Meanwhile, a sixth prosecution witness, the Director of Legal Affairs at the Public Procurement Authority (PPA), Mrs Lesley Duodu, in her testimony, gave an overview of the work of the authority.

She said the PPA was a regulatory body which regulated government purchases in order to streamline government’s financial management.

Mrs Duodu explained the work of the Central Review Tender Board (CRTB) and said the work of the PPA also included ensuring that government procurement did not infringe on cross-border trading.

The following transpired between Alhaji Ahmed and Mrs Duodu during cross-examination:

Alhaji Ahmed: Do you know the accused person?

Mrs Duodu: Yes.

Alhaji Ahmed: Did you deal with the accused person in your working?

Mrs Duodu replied in the affirmative and said she previously worked for 12 years at the Legal Department at the Ministry of Finance and Economic Planning (MOFEP) and advised on various projects as part of her work.

She said in the process of her work at MOFEP, “I may” but quickly said, “I did come across him in the line of my work.”

At that moment, the trial judge ended proceedings and adjourned the case to March 27, 2013.

Woyome has been charged with two counts of wilfully causing financial loss to the state and defrauding by false pretence.

He is alleged to have made false representation to claim GH¢51.2 million from the government through a default judgement but he has pleaded not guilty to the charges and is currently on a GH¢20 million bail.

Five prosecution witnesses who have so far testified in the matter are a Deputy Head of the Legal Department of the Ministry of Finance and Economic Planning (MOFEP), Mrs Mangowa Ghanney; a former Minister of Finance, Mr Yaw Osafo-Maafo; a former Deputy Minister of Finance, Mr Kwaku Agyemang-Manu; Ms Yvonne Quansah, who is stationed at the Financial Sector Division of MOFEP, and a former Deputy Governor of the Bank of Ghana (BoG), Mr Lionel Vanlare Dosoo.

Application by 327 voters to join petition - COURT SAYS NO

March 15, 2013 (Lead Story)

The Supreme Court Thursday unanimously threw out applications filed by 327 persons who sought to join the petition contesting the legitimacy of President John Dramani Mahama as the winner of the December 2012 presidential election.
In a unanimous decision, the nine-member panel held that the presence of the 327 applicants, who had come under 35 separate applications; “was neither necessary nor convenient.”

It said, their being allowed to join, would defeat the purpose of the Supreme Court (Amendment) Rules 2012 (C. 1. 74); which calls for an expeditious trial in a presidential electoral petition.

The effect of the court’s decision is that, the door has been shut on any person or group of persons, who might harbour the intention of joining the petition which is calling for the annulment of 11,916 votes .

The petition was filed by the presidential candidate of the New Patriotic Party (NPP) in the December 2012 elections, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey.

In a separate ruling, the court also dismissed the National Democratic Congress (NDC’s) opposition to the petitioners’ application for directions for issues to be set out for trial.

The court gave parties in the case seven days to meet, deliberate and agree on common issues to be set out for determination.

The Dismissal

In dismissing the application for joinder filed on behalf of the applicants by their lawyers, Mr Kwabla Senanu, Mr Stephen Ahor and Mr Eric Tieku; the court was of the view that the interest of the applicants could best be served by the presence of President Mahama and the National Democratic Congress (NDC) in the petition.

The court was presided over by Mr Justice William Atuguba, with Mr Justice Julius Ansah, Mrs Justice Sophia Adinyira, Ms Justice Rose Owusu, Mr Justice Jones Dotse, Justice Annin Yeboah, Justice Paul Baffoe-Bonnie, Justice N.S. Gbadegbe and Mrs Justice Vida Akoto-Bamfo as members.

The court said the applicants could rather serve as witnesses in the case should the need be.

It further held that the 1992 Constitution placed a 21-day mandatory ultimatum on the petitioners to file their petition because electoral matters were urgent and needed to be treated with urgency.

The court also reminded the applicants that Rule 61 (4) of the Supreme Court (Amendment) Rules 2012, C. I. 74 touched on expeditious determination of presidential electoral petitions, and for that reason, the applicants being allowed to join would defeat that purpose.

“For all the foregoing reasons, the application for joinder is dismissed,” Mr Justice Atuguba stated on behalf of the court.

The “Nap”

Mr Senanu, who treated the audience in court to bouts of laughter during his presentation, dozed off after the ruling but Mr Justice Dotse queried, “Mr  Senanu, are you sleeping?”.

Counsel quickly jostled out of his nap and began interacting with his colleagues resulting in more laughter from the packed courtroom.

On January 22, 2013, the court in a 6-3 majority decision, allowed the NDC to join the petition with the reason that the party; on whose ticket President Mahama stood for the elections, would help resolve the issues once and for all.

Applicants stopped

When the case was called around 10:13 a.m, the 300 plus applicants seeking to join the dispute were refused entry by security officials into the main Supreme Court yard, because they did not have accreditation.

When the first application was called, none of the applicants stood up, and Mr Ahor informed the court that his clients were refused entry, but he pleaded with the court to allow him to go out to fetch them.

He returned some minutes later and informed the court that the applicants had left because they were stopped at the main entrance to the court.

That, notwithstanding, the court permitted the application for joinder to be moved after the parties in the case had agreed to the court’s proposal to merge the 35 applications fixed for hearing.

Asked how many had applied to be joined, Mr Senanu said from the last count, the number was 400 but added that “more people are filing as I speak.”

Mr Senanu’s argument

Mr Senanu argued that the applicants were interested and necessary parties in the case, because they voted in the December 7 and 8, 2012 elections and it was, therefore, important they were allowed to join.

Counsel argued that it was important for his clients to be heard so the ends of justice would be served, but the barrage of questions posed by the panel members all pointed to the fact that the court did not agree with Mr Senanu’s position.

The following transpired in court between Mr Senanu and the panel:

Mr Justice Gbadegbe: What order will be made against them or in their favour?

Mr Senanu: They say no fraud occurred in the elections

Mr Justice Gbadegbe: You are just saying necessary, proper, intervener for the past 30 minutes – you are at the same position. Almost every registered voter in Ghana can line up in this court, is that what you are saying?

Mr Senanu: They are saying votes in 11,916 polling stations should be annulled (in reference to the petitioners call for the annulment of votes in those polling stations because of what they termed gross and widespread irregularities.

Mr Justice Gbadegbe: This is a constitutional matter that will affect almost everybody in Ghana including us here but not all have the right to be here.

Mr Justice Atuguba: All these submissions, is there anything new? You are just revolving around “we are a necessary party and we will be affected.”

Mr Senanu replied and said to prevent an “avalanche of cases”, it was important the court allowed his clients to join, but Mrs Justice Akoto-Bamfo interjected and questioned which paragraph of his brief he was quoting from.

Counsel said, “my Lord, I am sorry,” and attempted to continue with his submissions; but the panel thanked him and asked him to resume his seat.

Petitioners’ opposition

Counsel for the petitioners, Mr Philip Addison, opposed the application for joinder and stated that except the titles of the applications, names of the applicants and polling stations; the depositions of the applicants were the same.

He argued that the applications were intended to delay the hearing of the petition and further stated that every Ghanaian was interested in the petition, adding that the votes being sought to be annulled cut across board.

Mr Addison said the applicants came to court months after the polls ended and for that reason, “they have no right to bring the application at this time.”

“There are others who do not want the status quo to be maintained and they cannot come because time has run out,” Mr Addison said in response to the applicants’ prayer to be allowed to protect their votes.

Counsel maintained that the applicants’ interests could best be served by President Mahama and the NDC who were fully represented in the petition, adding that they were not a necessary party and, therefore, did not see how their presence would facilitate the full determination of the petition.

Mr Addison said he knew there were more joinders being filed, and it was, therefore, necessary that the court dismissed them and awarded punitive damages, but Mr Justice Gbadegbe stated on a lighter note, “won’t you wait for our position?” All laughed at his comment.

However, counsel for the President, Electoral Commission (EC) and the NDC, Mr Tony Lithur,  Mr James Quashie-Idun and Mr Samuel Kodzo, associated themselves with Mr Senanu’s submissions.

“We are not opposed and we believe there is merit in it,” Mr Kodzo stated emphatically.

Civility in Court

In response to an earlier submission by Mr Addison that he (Mr Addison) did not understand a shred of what Mr Senanu argued in court; Mr Justice Dotse advised all parties in the petition to adopt civility in their language.

He said it was not good for Mr Addison to state he (Mr Addison) did not understand what Mr Senanu’s submissions and pointed out that “it is what we say that goes out and inflame passions in public.”

“We do not want a repetition,” Mr Justice Dotse said to which Mr Addison replied, “point well taken.”

The court then rose and returned after an hour to deliver its ruling on the applications for joinder.

Preliminary objection

Mr Kodzo opposed the petitioner’s application for direction on issues to be set out for trial on the grounds that it was alien to court practice.

According to counsel, the normal practice was for the parties in the case to come to court to be directed on what to do, but Mr Addison said the important issue was the substance of the case and not the form it took, adding that the aim of filing the application was to settle the matter expeditiously.

Counsel argued that the President and the EC had also filed their applications for directions and for that reason Mr Kodzo’s objection must not be entertained by the court.

Second Ruling of the Day

The court in a unanimous decision overruled Mr Kodzo’s objection and said in the interest of justice, the application for direction would be treated as memorandum of issues under the Supreme Court Rules.

Mr Kodzo then informed the court that he had not filed the application for directions and prayed the court to give him a short adjournment to file, but Mr Justiced Gbadegbe queried, “we have about 30 issues. Do you want to file more”.

Nonetheless, Mr Kodzo was granted leave to file the NDC’s memorandum of issues.

Try and Meet

Mr Justice Gbadegbe advised the legal teams in the case to sit and narrow issues for determination, but Mr Lithur explained that the President did not agree with the petitioners on some issues raised.

For instance, President Mahama is praying the court to decline the petitioners’ prayer for the court to allow parties in the case to adopt audio-visual aids in the presentation of evidence.

On the petitioners’ prayer that parties in the case be made to exchange documents to be relied on seven days before trial; the President is pleading with the court to reject that request.

President Mahama is also praying the court to decline the petitioner’s suggestions that seven days before the trial; all parties must be made to present a list of witnesses and a brief summary of the nature and relevance of each witness’ testimony to enable the court to determine its probative value.

He has, however, not opposed the petitioners’ suggestion that the hearing of the petition should take two months.

Parties agree

After the court’s intervention, the parties agreed to meet to deliberate on issues to be set out for trial.

They also agreed to state their disagreements when the need arises for onward submission to the court for resolution.

Seven-day ultimatum

The court subsequently gave lawyers for parties in the case seven days to reach an agreement on common issues to be set out for trial.

It said, the parties must set out issues they disagreed on and communicate them to the registrar of the court for the court to settle the issues before trial.

All the three petitioners were present but the President was absent. The NDC was represented by its General Secretary, Mr Johnson Asiedu Nketiah, while the EC was represented by a Deputy Commissioner in-charge of Operations, Mr Sarfo Kantanka.

Petition against presidential results - Prez applies for issues for determination

 March 14, 2013 (Page 3 Lead)

President John Dramani Mahama has filed an application praying the Supreme Court to set out a number of issues for determination in the petition challenging his legitimacy.

Among the issues he is requesting the court to determine are whether or not failure by presiding officers or their assistants to sign declaration forms invalidates the declared results on those forms, notwithstanding the signatures of polling and/or counting agents of the presidential candidates.

He is also praying the court to order the petitioners to state the precise number of polling stations where voting took place without biometric verification and whether or not ballots cast without prior biometric verification  were allegedly taken into account by the Electoral Commission (EC).

President Mahama is also urging the court to order the petitioners to state the precise number of polling stations where different results on the statement of poll and declaration of results for the President bore the same polling station codes.

President Mahama,  who through his lawyer, Mr Tony Lithur, filed the application for directions on issues to be set out for trial on March 13, 2013 at the registry of the Supreme Court, is also praying the court to strike out allegations that the total votes cast exceeded the number of ballot papers issued to voters at polling stations.

He is additionally pleading with the court to strike out allegations that there were many instances when the total number of votes cast at polling stations exceeded the total number of registered voters at polling stations in the December 2012 presidential election.

According to him, the issues he was asking to be struck out were not part of the petitioners pleadings to give rise for the court to determine.

The Petitioners

The petitioners — Nana Addo Dankwa Akufo-Addo, his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey — filed the petition at the highest court of the land praying it to annul votes cast in 11,916 polling stations due to what they termed “gross and widespread irregularities”.

They had, in a December 28, 2012 petition, called for the annulment of votes cast in 4,709 polling stations but amended their petition on February 9, 2013 after the court had granted them permission to do so and cited 11,916 polling stations as the total number of polling stations where alleged irregularities were recorded.

The three had initially called for the cancellation of 1,342,845 valid votes cast during the election at 4,709 polling stations due to the alleged irregularities recorded during the elections, but are now urging the Supreme Court to pronounce an additional 3,327,659 valid votes cast as invalid.

The Supreme Court, on February 7, 2013, granted the petitioners’ prayer of amendment and accordingly allowed the amendment.

Respondents

President Mahama, who is the first respondent, the Electoral Commission (EC) and the National Democratic Congress (NDC), the second and third respondents, respectively, have filed their responses.

They have all refuted the petitioners’ allegations on the grounds that President Mahama won the elections legitimately in the full glare of the media, local and international election observers.

The NDC applied to join the petition on December 31, 2012 and was duly granted permission by a 6-3 majority decision of the Supreme Court on January 22, 2013.

More joinders

More than 300 people have filed separate applications seeking to be joined to the petition on the grounds that polling stations where they voted were among the 11,916 the petitioners cited as having recorded widespread and gross irregularities.

President’s prayer

Some of the issues the President is asking to be set out for determination are whether or not:

•             Voting took place without prior biometric verification at any polling station

•             Inability (if at all) of qualified and eligible voters to undergo biometric fingerprint verification prior to voting invalidated the votes cast by them and if it did; whether or not it materially affected the outcome of the December 2012 presidential election

•             The recording (if any) of the results of different polling stations on “pink sheets” bearing the same polling station codes, invalidated the declared results on the said “pink sheets”. And if it did, whether or not this materially affected the outcome of the December 2012 presidential elections

•             The recording (if any) of different results on “pink sheets” bearing the same serial numbers invalidated the declared results on the said “pink sheets”. And if it did, whether or not this materially affected the outcome of the December 2012 elections.

•             The declared results recorded on all genuine “pink sheets”, which were duly signed by the polling and/or counting agents of the presidential candidates, were the results and product of duly supervised elections in those polling stations.

•             If there was over-voting at polling stations, whether or not that materially affected the outcome of the December 2012 presidential elections

•             If there were elections at locations, which were not part of the 26,002 polling stations created by the Electoral Commission (EC) and whether or not voting duly took place at those polling stations under the supervision of the respective polling and/or counting agents of the presidential candidates

•             If indeed elections took place at locations which were not part of the 26,002 polling stations created by the EC and whether or not this invalidated the declared results at those polling stations. And if it did, whether or not this affected the outcome of the December 2012 presidential elections.

•             Domestic and international observers of the December 2012 presidential election acknowledged that the conduct of the said election was generally free, fair and transparent

President Mahama is also pleading with the court to grant him permission to file additional issues if the need arises.

He is also urging the court to decline the petitioners’ prayer for the court to allow parties in the case to adopt audio-visual aids in the presentation of evidence.

He is pleading with the court to reject that request by the petitioners that parties in the case be made to exchange documents to be relied on seven days before trial.

President Mahama is praying the court to decline the petitioners’ suggestions that seven days before the trial, all parties must be made to present a list of witnesses and a brief summary of the nature and relevance of each witness’ testimony to enable the court to determine its probative value.

He has, however, not opposed the petitioners’ suggestion that the hearing of the petition should take two months.

Story by Mabel Aku Baneseh

327 Voters join petition - They say election was transparent

 March 12, 2013 (Page 3 Lead)

Three hundred and twenty-seven voters have applied to join the petition challenging the declaration of President John Dramani Mahama, as the winner of the December 2012 polls.

The Supreme Court is expected to hear their motion for joinder on March 14, 2013.

According to the applicants, the elections were so transparent that there were no disputes after the declaration of the results; and for that reason it came as a surprise to them when the petitioners identified their polling stations, as among those where irregularities allegedly took place.

In 35 different applications, the 327 applicants stated that they were bringing the action in their capacity as citizens, who cast their ballots during the December 7 and 8, 2012 polls.

The applicants are from some of the 11,916 polling stations, constituencies and regions where alleged irregularities have been cited by the petitioners

The applicants, who filed their applications on March 3, 7 and 8, 2013 respectively are being represented by Mr Kwabena Senanu, Mr Stephen Ahor and Mr Eric Tieku, all legal practitioners.

According to the applicants, their attention had been drawn to the petitioners’ prayer for votes to be annulled in 11,916 polling stations, and since they were citizens who cast their ballots and witnessed what happened on voting day they did not want their votes to be annulled.

According to them, there was the need for them to be heard by the court, because it was their right under Article 42 of the 1992 Constitution to vote.

They argued that it would be unjust for their votes to be annulled because they underwent biometric verification before casting their ballots.

The applicants attached their voter identity cards as exhibits to the documents they have filed for the Supreme Court’s perusal.

Also attached to their filed papers as exhibits, were votes cast in favour of each presidential candidate at their respective polling stations during the December 2012 presidential polls.

Contention of the 327 applicants

The contention of the applicants were that to the best of their knowledge and recollection; there were no protests by any political parties when the results were declared at the polling station level.

They are, therefore, praying the court to offer them the opportunity to protect their votes.

A particular application, which has Iddrisu Mohammed, as the lead applicant, with nine others from Dungu Primary School in the Sagnarigu Constituency stated that, “as voters who had lawfully exercised their franchise, we say that we are directly interested in the outcome of the petition.”

“We also wish to protect our validly cast votes based on which the results of the presidential election were declared,” an affidavit in support stated.

According to them their being allowed to join would protect their interests, ensure that all matters in the present petition were “fully and effectually adjudicated upon and determined.

They further contended that they would suffer “irreparable hardship if our votes were cancelled, in that we would have been denied our constitutional right to be part of the decision making process of the country, a right which we are advised by counsel, is guaranteed by the 1992 Constitution; and is inalienable; and which cannot be compensated in any way whatsoever.”

Akufo-Addo opposes moves by 327 join petition

 March 12, 2013 (Front page)

Petitioners contesting the legitimacy of President John Dramani Mahama have opposed moves by 327 people to join the petition.

According to the petitioners, the request by the applicants, if granted, “will open the floodgates for every registered voter who claims to have voted in the December 2012 presidential election to apply for joinder, if they so desire, and thereby stultify these proceedings interminably”.

They further argued that there was no need for the applicants to be allowed to join the petition because their arguments had been extensively canvassed by President Mahama, the Electoral Commission (EC) and the National Democratic Congress (NDC), who are all respondents in the case.

The 327 applicants, who were drawn from some of the 11,916 polling stations where alleged irregularities took place, had argued that the election had been so transparent that there were no disputes after the declaration of the results and for that reason it came as a “surprise” to them when the petitioners identified their polling stations among those where irregularities allegedly took place.

The first to apply for a joinder was the National Democratic Congress (NDC), which applied to join the petition on December 31, 2012, three days after the presidential candidate of the New Patriotic Party (NPP) in the December 2012 polls, Nana Addo Dankwa Akufo-Addo; his running mate, Dr Mahamadu Bawumia, and the Chairman of the NPP, Mr Jake Obetsebi-Lamptey, had petitioned the Supreme Court challenging the declared results.

In a 6-3 majority decision, the Supreme Court on January 22, 2013 granted the NDC, on whose ticket President Mahama stood for the elections, permission to join the petition.

In 35 different applications, the 327 applicants stated that they were bringing the action in their capacity as citizens who cast their ballots during the December 7 and 8, 2012 polls.

An affidavit in opposition canvassed on behalf of the others by Mr Obetsebi-Lamptey said, “It is neither just nor convenient to grant this application and I say this is not a case in which this court ought to exercise its discretion in granting the application.”

According to the petitioners, the whole essence of the Supreme Court (Amendment) Rules, 2012 , (C.I. 74) to ensure the speedy determination of any presidential election petition would be defeated if the applicants’ request for joinder was granted.

The affidavit in support said the applicants would in no way be denied their constitutional rights to participate in the decision-making process if the court came to the conclusion that their votes, together with the other contested votes, were annulled in accordance with the electoral laws and regulations of the land.

It said the applicants had also failed to show that their joinder was necessary, adding that the “application for joinder is without merit and brought in bad faith, with the sole purpose of causing undue delay to the determination of this petition, which is of national interest”.

It further pointed out that the election results at the disputed polling stations were not declared in accordance with the electoral laws and regulations of the land, adding that there was no evidence that the applicants cast their ballots in the elections.

“There is no evidence that the applicants cast valid votes in the December 2012 presidential election and that in any event the interest they seek to protect through this application for joinder, the outcome of elections, is adequately protected by all three respondents who are better placed than the applicants to protect the outcome of the elections,” the affidavit in opposition pointed out.

The petitioners suggested that the 327 applicants could serve as witnesses to protect whatever rights they sought to protect, adding, “It is patently untenable that every Ghanaian voter who voted in the 2012 presidential election is entitled to be joined as a necessary party to the present suit.”

They further argued that the applicants did not enjoy the same rights as the petitioners, since “the petitioners are circumscribed by the 21-day statutory limitation imposed on all prospective petitioners from the date of the declaration of results by the second respondent in the presidential election”.

Court slaps GH¢68,000 damages against Kobby Fiagbe (www.graphic.com.gh)

 March 9, 2013 (Daily Graphic, page 14)

The Editor of the Ghanaian Lens, Mr Kobby Fiagbe, has been slapped with a GH¢68,000 fine for defaming former Defence Minister, Dr Kwame Addo Kufuor.

The Fast Track High Court, presided over by Justice Ofori Atta, also ordered Mr Fiagbe to retract, on three consecutive occasions, some offensive and defamatory statements he made against the former minister on Adom FM.

The facts of the case are that on November 25, 2011, Mr Fiagbe while engaging in a banter with the New Patriotic Party Member of Parliament for Assin North, Kennedy Agyapong, on Adom FM, expressed surprise that Mr Agyapong did not know that the NPP government demanded and received 20 per cent of all contracts as kick back.

“How come news reports came out that Addo Kufuor used to be called 20 per cent?” he asked.

Lawyers of Mr Addo Kufuor wrote to Mr Fiagbe and Adom FM to retract the offending statements and apologise. Adom FM did but Mr Kobby Fiagbe called the bluff of the former minister and his lawyers.

Determined to clear his name, Mr Addo Kufuor caused his lawyers, Kulendi@ Law, to sue the Ghanaian Lens editor. He entered an appearance through his lawyer, Kakra Essamuah, but never turned up in court to defend his comments.

Justice Ofori Atta, therefore, awarded GH¢60,000 in general damages, and GH¢8,000 as costs against Mr Fiagbe, who is also a member of the government’s communications team.

A member of Mr Addo Kufuor’s legal team, Mr Denis Adjei Dwomoh, told Myjoyonline.com that Mr Fiagbe had in 2007 published similar reports about his client.

In that report, the Ghanaian Lens newspaper claimed that as a Defence Minister, Mr Addo Kufuor transferred a UN account from Forces Pay to his office, imputing wrongdoing to the minister.

That report, according to Mr Dwomoh, was a complete fabrication designed to tarnish the image of the medical-doctor-turned-politician.

He said the court, in its Friday ruling, also restrained Mr Fiagbe from making any similar comments against the plaintiff.

Lawyer for the respondent, Mr Essamuah said he was not in court when the judgment was given.

He said he and his client made failed attempts to settle the matter out of court.

Mr Essamuah could not readily tell if he would appeal the decision, insisting that he would take appropriate instructions from his client.

SUPREME COURT APPLIES BREAKS ON PAYMENT TO ISOFOTON

 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.