Tuesday, June 25, 2013

YOU ARE BLESSED! AMIDU WINS AGAIN…ISOFOTON VOMITS $325,472.00

By William Yaw Owusu
Friday, June 21, 2013
THE SUPREME Court ha ordered Isofoton S.A., a Spanish company, to refund $325,472.00 (GH¢488,208.00) received as judgment debt, to the State.
Apart from paying interest from the day it received the amount which the court described as ‘void’, the nine member panel, chaired by Justice Samuel Kofi Date-Bah, also ordered Isofoton S.A. to refund ‘any subsequent payments’ in respect of the discredited transaction.
This is the second time in less than 10 days that the Supreme Court is ordering foreign firms to refund huge sums of money to the state, following attempts to cash in on illegal contracts.
All the suits were filed by Martin B.K. Amidu, who was relieved of his position as Attorney-General and Minister of Justice under the previous Mills’ administration.
At the court premises, Mr Amidu was hailed by his supporters for chalking another legal success, saying that he is blessed. “Martin Amidu, you are blessed,” they yelled.
The first major ruling was in respect of the order to Waterville Holdings Limited, a British Cayman Island company, said to be defunct, to refund a whopping €25million for no work done.
In all the moves, there were Ghanaian lawyers and business people fronting for the foreign firms.
Some of these lawyers have been referred to the General Legal Council for disciplinary action to be taken against them.
The Facts
The facts of the case are that in September 22, 2005, the erstwhile NPP administration, through the Ministry of Food and Agriculture, entered into an agreement with Isofoton S.A. of Montalban 9, 28014, Madrid, Spain for the execution of a ‘Solar PV Powered Water Pumping project and Irrigation Systems in Remote Rural Areas of Ghana’. Earlier, the government had awarded a similar contract in 2001 through the Ministry of Energy to the same company for the execution of the ‘Solar Electrification Project in Ghana Phase II’.
In 2008, Isofoton S.A. brought an action against the state, represented by the Attorney General, at an Accra High Court and secured a default judgment with no specified amount because the Spanish firm claimed the government had abrogated the contract with the Ministry of Agriculture without justification.
The court then asked the parties to reconcile the amount involved before settlement. However, in 2009, the State went to court and file processes in an attempt to set aside that default judgment.
Strangely, the AG abandoned that agenda of setting aside the judgement and rather reached for an out-of-court settlement with Isofoton during which the AG, on behalf of government, offered to pay an amount of $1.3million.
The settlement agreement was then filed and adopted by the court on September 28, 2010, and government paid $325,472 in March 2011 to Isofoton S.A. as part payment but subsequently defaulted in the payment of the balance.
The refusal by the government to pay the rest of the amount compelled Isofoton S.A. to file for a Garnishee Order against the Ministry of Agriculture.
An Accra High Court, presided over by Ernest yao Obimpeh on May 2, 2012, issued the Garnishee Order to freeze the Engineering Department’s accounts of the Ministry of Agriculture at the Bank of Ghana.
In an attempt to overturn the Garnishee Order, Martin Amidu, the then AG on June 5, 2012, filed an application for stay of execution but the trial judge, Justice Obimpeh, dismissed the action on grounds that the AG did not show any exceptional circumstance to warrant the grant of the application.
Isofoton S.A. then initiated contempt proceedings against the state when it became obvious that the state was delaying in the payment of the balance.
While Mr. Amidu was still fighting to save Ghana from incurring unnecessary debts, he was sacked by former President Mills.
In an effort to prevent the dissipation of the resources of Ghana, Mr. Amidu, who has been hailed by many for leading the anti-corruption crusade of late, sued the Attorney-General, Isofoton S. A., Madrid, Spain and Anane-Agyei Forson, the Spanish firm’s Ghanaian agent at the Supreme Court for the defendants to return the money.
Reliefs
He sought a declaration, among other things, that “on a true and proper interpretation of Article 181(3) (4) and section 7 of the Loans Act, (Act335), the laying before and approval on 1st August 2005 of the terms and conditions of the Second Financial Protocol between the Republic of Ghana and the Kingdom of Spain for an amount of sixty-five million Euro (€65,000,000) for the implementation of various 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 for the implementation of various 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 approved by Parliament.”
He said “the agreement between Isofoton S.A. of Montalban 9, 28014, Madrid Spain, a foreign registered company and the Ministry of Food and Agriculture of the Government of Ghana dated 22nd September 2005 for Pumping and Irrigation Systems in Remote Rural Areas of Ghana is an
International business or economic transaction within the meaning of Article 181(5) of the 1992 Constitution and never became operative because it was not laid before and approved by Parliament and is accordingly null, void and without effect whatsoever.”
Finally, Mr. Amidu said “the agreement between Isofoton S.A of Montalban 9, 28014, Madrid Spain, a foreign registered company and the Ministry of Energy of the Government of Ghana in 2001 for the execution of the ‘Solar Electrification Project in Ghana Phase II’ is an international business or economic transaction within the meaning of Article 181(5) of the 1992 Constitution and never became operative because it was not laid before and approved by Parliament and is accordingly null, void and without effect whatsoever.”
Judgement
Even though the court ordered Isofoton S.A. to refund the money, the court did not accept Mr. Amidu’s argument that the 3rd defendant (Anane Forson) should be part of the suit.
The court said even though the 3rd defendant held himself out as an attorney to sue in the courts of Ghana on behalf Isofoton S.A. for damages in an international business transaction, Mr. Amidu did not show any reasonable cause of action against him.
The court said the conduct of Isofoton S.A. in suing for breaches of the said agreements,
when the representatives of the Spanish firm knew that the agreements were international business transactions which were not laid before and approved by Parliament, was inconsistent with and in violation of the Articles 2 and 181 (5) of the Constitution as claimed by Mr. Amidu.
The High Court
The Supreme Court held that the High Court, which gave default judgment, acted without jurisdiction when clearly the issue that came before it was amenable to the supervisory jurisdiction of the Supreme Court under Article 132 of the Constitution.
The court said the High Court misinterpreted Article 181 (3) (4) and (5) of the Constitution
to mean that the approval of the terms and conditions of 2nd Spanish Financial loan by Parliament automatically excluded the further laying before and approval by Parliament, of subsequent international business or economic transactions arising out of the terms and conditions of the loan which the government was a party as mandated by Article 181 (5).
Amidu’s Capacity
The court held that Mr. Amidu had the capacity to initiate the action since he is a citizen
of Ghana. Mr. Amidu, the plaintiff, represented himself while Grace Oppong, a Senior State
Attorney represented the AG, with Owusu-yeboa and Kizito Beyuo representing Isofoton
S.A. and Anane Adjei Forson respectively.
Dotse’s Beef
Similar to what happened in the Waterville case last week, Justice Jones Victor Dotse, a member of the panel, made an observation after Justice Date-Bah had read the unanimous judgment.
He said it was only the Supreme Court that had the exclusive jurisdiction to interpret constitutional matters, particularly the articles on which Mr. Amidu relied and advised the inferior courts not to arrogate to themselves that power.
The High Court, he observed, usurped the powers of the Supreme Court and dealt with issues that bordered on constitutionality, noting that the ‘brazen and bold attempt’ by the High Court judge should not have happened.
The High Court, he indicated, should have referred the matter to the highest court of the land for interpretation and that its action was inconsistent with the Court Acts.
According to him, it was only by strict adherence of this principle that the provisions in the Constitution would be protected. Justice Dotse urged the inferior courts to ‘hasten slowly’ when issues of such nature were brought before them.
Other justices on the panel included Julius Ansah, Sophia O. Adinyira, who was not in court but gave her consent for the judgment, Rose Owusu, Anin-yeboah, Paul Baffoe-Bonnie, Sulley Nasiru Gbadegbe and Vida Akoto- Bamfo.


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