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.
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