HIGHWAY TENDERS MORE CERTIFICATES ON CP'S 90M EUROS PAYMENT

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By William Yaw Owusu

Thursday, July 31, 2014

The Ghana Highway Authority (GHA) has tendered in evidence at the ongoing Commission of Enquiry investigating the payment of judgement debts, more payment certificates issued to Messrs Construction Pioneers (CP) for the construction of roads in the country.

The company received €85.2million in addition to £7million during the tenure of Betty Mould-Iddrisu when she was Attorney General and Minister of Justice between 2009 and 2011, a move that has aroused the public’s suspicion about how the payments were determined.

The Ghana Highway Authority (GHA) has already told the commission presided over by Justice Yaw Apau of the Court of Appeal that CP was paid millions for road project contracts some of which the construction giant did not even execute in the 1990s.

They cited the Akim Oda-Kade/New Abirem – Nkawkaw road in the Eastern Region which CP never executed but managed to claim loss of profit with interest from the Government of Ghana.

The GHA has already testified that, the initial contract sum for Akim Oda - Kade/New Abirem – Nkawkaw, for which payment was made for no work done, was GH¢10.6million (¢106billion) with a foreign component of 155million Deutsche Marks.

The Assin Praso – Yamoransa road the authority confirmed as ‘shoddily done’ by CP also attracted a contract sum of GH¢1.5million (¢15.2billion) with a foreign component of 28.3million Deutsche Marks which was subsequently paid. 

The Biriwa-Takoradi road was executed at initial contract sum of GH¢2.9million (¢29.5billion) with a foreign component of 49.4million Deutsche Marks and evidence already before the commission was that CP was overpaid by 44million Deutsche Marks for that project while the Obuasi township roads were completed and the government issued a defects liability certificate.

The GHA has already retrieved certificates covering the overlay of Biriwa-Takoradi road project and tendered before the commission but the Accra City Centre Improvement Project certificate was still not found.

Executive Director of GHA, Michael Abieteh Abbey told the commission yesterday that the GHA submitted the payment certificate for the Obuasi Township Roads contract to CP but were still searching for certificate for the Accra City Centre Improvement Project.

He said they were also searching for back-ups for all the payment certificates issued to CP and asked the commission to contact the Department of Urban Roads (DUR) to provide payment certificate for the Accra City Roads Projects since GHA did not award those contracts.

Mr. Abbey also tendered in evidence a compilation of what he called a reconstructed CP judgement debt issue saying “a few people were there when CP was working and they have confirmed some of the issues for us.”

Justice Apau commended the GHA boss for always wanting to assist the commission with its works saying “you are one of the few heads who attend our sittings personally.”

Adentan Lands

Earlier, Nii Adjei Kpobi Asaawa II who claims to be the head of Agbawe Family in La, Accra and who are claiming compensation for the Adentan lands compulsorily acquired by the government for the then State Housing Corporation also testified.

Evidence before the commission is that another chief Nii Sowah Okataban II is also claiming similar compensation since 1993.

Nii Asaawa II said the family sued the SHC, SSNIT and the AG to force the government for compensation but it has proved futile.

He said when they put in a claim in 1993 for 1,395.11 acres, the valuation was about ¢4.420 billion.

Justice Apau however, advised the factions to settle their differences before approaching the State Housing Company since the SHC had made it clear it was willing to negotiate with a united front.

EOCO Testimony

Jacqueline Avotri, a staff officer of Economic and Organized Crime Office (EOCO) formerly Serious Fraud Office (SFO) also testified on the investigation the office conducted into the compensation claims of some of the Volta flooded areas following the construction of the Akosombo Dam.

She tendered in evidence documents covering Apaso and Makango areas and said they were yet to retrieve document covering Pai areas.

She said the outstanding report for the Pai flooded areas was still not retrieved but added that SFO handed copies to the Ministry of Finance who had asked them to conduct the investigation.

MoFEP DENIES LIABILITY IN VOLTA BASIN PAYMENT

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By William Yaw Owusu

Wednesday, July 30 , 2014

The Ministry of Finance and Economic Planning (MoFEP) says it cannot be held liable for any wrongful payment of compensation to victims of the Volta Basin Flooded Area.

“The ministry would like to comment that we rely on the verification and processes done by the MDAs and statutory bodies that have been mandated to review the processes,” Sarah Fafa Kpodo, a senior state attorney at the ministry told the Commission of Enquiry investigating the payment of judgement debts.

At the commission’s sitting in Accra yesterday, Sole Commissioner Justice Yaw Apau asked the MoFEP to comment on a report by a professional group that was tasked to look into the Volta Basin resettlement programme.

The group investigated the entirety of the resettlement programme including payment of compensation after the Akosombo Dam was constructed over the Volta River and areas including Pai, Apaso, Makango, Kete Krachi among others were mentioned.

However, the MoFEP Attorney said “the ministry in its role does not approve of claims. What the ministry does is that they accept claims already approved either by sector ministries or the agencies.”

She continued that “in this case it is the Ministry of Lands and Natural Resources through the Land Valuation Division of the Lands Commission. If it is already approved at that stage, it is forwarded to the ministry for payment.”

She said “we normally receive a verification reports and in this situation we received one from the SFO spelling out that all the statutory provisions have been complied with.

Ms Kpodo said there were three reports in all and two were dated August 2006 in respect of the Makongo flooded area, and the Apaso flooded area adding “the one dated September 2006 is the investigation into the compensation claims which included the Pai flooded area. I believe to the best of my knowledge that the third report actually consolidated the previous reports.”

“The report raises very significant issues. It raises the issue of how the acreages for which the compensations were paid. It raises the issue of the bonafide of the consultant who worked on them. It also raises the issue of the formula for which the payments were made,” she said.

“The ministry’s audit division has been mentioned in the report as not being diligent. With that issue, the auditor who worked on the documentation had been transferred and a new officer has taken over and is going through the processes to respond to the commission’s questions.”

She said the ministry was compiling data to respond appropriately to the commission’s request for information on all issued concerning the Volta Development Act (Act 46) of 1967 under which the VRA operates, State Lands Act (Act 25) of 1962 under which the VRA acquired the lands, Article 267 of the 1992 Constitution which states the mode for which state lands are acquired.

She also promised the ministry’s commitment to help the commission to unravel the payment of GH¢460,000 to the Worawora Chief as land compensation for the Volta River flooded area.

She said she was not aware if the amount paid to the Worawora Chief was compensation for 3000 acres of deluded land that had been seeded by the Pai Traditional Council to the Worawora Council.

It emerged at the commission that the schedule attached to the payment of the first installment did not show any deduction of the 3000 acres from the 99000 acres credited to the Pai Traditional Council resulting in double payment and it is the contention of the commission that it escape audit scrutiny of MOFEP.

Ms. Kpodo said the ministry has September 2013, established a Compensation Unit where new claims that come to the ministry were supposed to be routed through the unit, adding that “the ministry does verification of all documents before ordering payments.”

KONADU $4M AT JUDGEMENT DEBT COMMISSION

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By William Yaw Owusu & Rebecca Adwoa Solomon

Tuesday, July 29, 2014

The Ministry of Finance and Economic Planning (MoFEP) yesterday tendered in evidence documents covering the payment of over $4million to former First Lady Nana Konadu Agyeman Rawlings as judgement debt to her company.

David Agbele, counsel for the ministry told the Commission of Enquiry investigating the payment of judgement debts that the documents tendered provided a justification for the decision to halt fund allocated to Calf Cocoa International Limited.

Court intervention

He said nonetheless, Calf Cocoa went to court to secure judgment over the halt of funds and there was evidence that the company was paid $4,150, 27.50 on the court’s orders.

The legal counsel told Sole-Commissioner Justice Yaw Apau that the Debt Management Division of the ministry was task to administer the loan facility secured from the Chinese Exim Bank and Calf Cocoa - which is partly owned by Carridem Development Company Limited, the investment wing of the 31^st December Women Movement (DWM) - was one of the three companies to benefit.

He said however, that following the establishment of the HIPC initiative set up by the Paris Club, which could have allowed up to 90% of debts to be written off, the ministry halted the disbursement of the funds.

He said China had said they were not going to be part of the HIPC initiative and that affected the repayment arrangement of the Exim Bank facility.

“The servicing of the debt were halted in anticipation of the re-arrangement. The Exim Bank decided that they would not disburse the loan until the issues over the HIPC initiative were cleared.”

Mr. Agbele said that the document tendered were meant to justify the ministry’s inability to disburse the funds to Calf Cocoa and the subsidiary agreements they had.

‘Genuine reasons’

He said from the documents, the ministry had genuine reasons not to disburse the funds but the case went through full trial and the government lost.

He said the ministry was compiling the court proceedings and other information regarding the transaction and how Calf Cocoa was finally paid.

Mrs Rawlings in June, appeared before the commission to confirm the payment to Calf Cocoa International but insisted that the amount paid was in cedis and not dollars.

Tony Lithur who had represented Calf Cocoa in court had earlier told the Sole-Commission that he secured $4.15m for the company because the government at the time refused to release about $2.6million to Calf Cocoa for its operations.

Interestingly Nana Konadu went to the commission with a different lawyer outside Tony Lithur who secured the judgement debt for her.

The Problem

Nana Konadu had said “sometime in 2002 ending, we wrote to the ministry informing them that we had completed everything and we would like to start the project in 2003. It was at that time that we started having problems of who owned the company.”

She said “politics unfortunately came to play in this project and it was difficult to get the money. From 2003 when we were supposed to have started manufacturing cocoa powder, cocoa cake and cocoa butter, it was impossible to start.”

She said when things got out of hand “the Chinese sort of pulled out because they said there was too much political interference,” adding “we decided to go to court to fight the case in 2005 and judgement was delivered in 2008.”

According to the former First Lady, the government went on appeal but lost against Calf Cocoa and in 2009 “we could actually go to the premises again.”

“From 2002 when the problem started, it has not stopped. It carried through to the new government of 2009 and it is carrying through in the government of today. I don’t know whether they really want to let this place function so that we can employ the 2800 people that this factory can employ.”

AG WANTS ACTION ON VOLTA BASIN COMPENSATION CLAIMS

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By William Yaw Owusu & Rebecca Adwoa Solomon

Thursday, July 24, 2014

The office of the Attorney General has recommended sanctions for public officials cited in a report by a professional group that was tasked to look into the Volta Basin resettlement programme.

The AG after analyzing the report wrote a letter on July 11, 2014 to the Commission of Enquiry investigating the payments of judgement debts, stating her position on the report released by the independent professional group.

The professional group investigated the entirety of the resettlement programme including payment of compensation after the Akosombo Dam was constructed over the Volta River.

Dorothy Afriyie-Ansah, a Chief State Attorney appearing before Sole Commissioner Justice Yaw Apau yesterday said “the AG’s office is of the view that the report be forwarded to other agencies under the ministry for further investigations.”

She said the AG wants the police to build dockets for public officials mentioned in the report.

The AG’s advice also had a bearing on the directive given by the same office (AG) where the Land Valuation Board now Land Valuation Division of the Lands Commission was given the power to pay compensation directly to the traditional authorities instead of Administrator of Stool Lands.  

Then Attorney-General, Joe Ghartey, through a letter signed in 2008 by eminent jurist Justice VCRAC Crabbe, gave the mandate to the Land Valuation Board to be in charge of such compensation payments, a move, the Administrator of Stool Lands described as unconstitutional.

Since the directive, there have been sharp disagreements between officials of the Land Valuation Division and the Administrator of Stool Lands over the compensation for lands even though provisions of Article 267 (2) of the 1992 constitution mandated Stool Lands to act in that capacity.

Justice Apau advised that following the AG’s letter to the commission, the AG should write back to Lands Commission to establish which authority should be in charge of the distribution of compensation.

In the commission’s view, the constitutional provision was unambiguous and there was no need for the AG to issue that directive.

Earlier, senior state attorney for the Ministry of Finance and Economic Planning, Sarah Fafa-Kpodo had requested for an adjournment to enable the ministry search for documents in a case in which the government was sued by two people who were involved in a lorry accident.

BOMBSHELL AT JUDGEMENT DEBT HEARING

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By William Yaw Owusu

Wednesday, July 23, 2014

A United States-based Chemical Engineer Dr. Michael Gyamerah is accusing the Land Valuation Division of the Lands Commission of colluding with some chiefs in the Volta Region to dupe the government of millions of cedis.

Dr. Gyamerah, Associate Professor who gave the mind-blowing testimony yesterday at the Commission of Enquiry investigating the payment of judgement debts said his research has revealed that  a whooping GH¢15million might have been lost in the compensation claim by chiefs in the Volta River flooded areas.

He told Sole-Commissioner Justice Yaw Apau of the Court of Appeal that the chiefs formed an 'Association of VR Flooded Lands Compensation Claimants' chaired by Krachiwura Nana Mprah Besemuna III and through the association, about GH¢9 million had already been disbursed.

He said he sighted a letter written by the chiefs and endorsed by the Land Valuation Division where the commission was to facilitate the release of the funds which came in tranches and in return have the monies slashed.

Dr. Gyamerah said the ‘facilitation’ in the letter to ensure ‘early, expeditious and timely’ release of the funds was a classic case of bribery adding “it was an orchestrated attempt by Land Commission and those involved to defraud the state.”

He said the association was formed ostensibly to serve as a conduit to siphon 15% of over GH¢ 130 million, which is the 'full and final settlement of compensation claims for lands compulsorily acquired and were flooded as a result of the construction of the Akosombo Hydro Electric Dam.'

“The payment made to a 'VL Reimbursable Fund' under the control of the Association of VR Flooded Lands Compensation Claimants chaired by Krachiwura Nana Mprah Besemuna III constituted 15% of compensation money meant for fellow citizens of Ghana impoverished as a result of losing their land and property following the construction of the Akosombo dam.”

The witness said for instance that his research revealed that the chiefs of Pai Traditional Area led by one Nana Diawuo Bediako II who he said is known in private life as Atta Kwasi, reportedly ‘connived’ with a firm called Kwadwo Ababio & Co to submit fake documents to push for the payments.

“Apparently, the Land Valuation Division of the Lands Commission did not research the Pai Traditional area, and either inadvertently or through gross negligence aided and abetted the payment of large sums of Ghana 's taxpayer's money to the Association of VR Flooded Lands Compensation Claimants.”

He said the recipients of the claims squandered the huge sums even though the Pai tradition clearly indicated that the funds were not for their personal use saying “per our customs and traditions there is no way an individual can claim title to any land not even the chiefs. Everything belongs to the community.”

Dr. Gyamerah said communities including Pai, Apaso, Otiso and Supon deserved compensation saying “they were moved from their own land and settled on their own land.”

In the case of Otiso, he said his research showed that the Lands Valuation Division of the Lands Commission failed to research the tradition of the town and through gross negligence aided and abetted the payment of over GH¢ 280,000.00 of Ghana's taxpayer's money to an Otiso chief who is not entitled to but falsely claimed that stool lands were his personal property.

He added that in the case of Pai, only four people including his own brother called Bob Kwame are claiming compensation for the whole area.

He said there was documentary evidence that 60% of the first tranche compensation payment was paid to the Surveyor (Kwadwo Ababio & Co) as consultation fee although the attached spreadsheet shows that a 10% valuation fee based on the total compensation is to be paid to the Surveyor adding “the Surveyor's fee alone based on the total compensation will amount to GH¢ 13,833,606.80.

He said documents showing signatures of Nana Diawuo Bediako II, representing Pai Traditional area are completely different on the Lands Valuation Board Pay Voucher and the letter from JSA Corporate & Legal Consult to the Executive Secretary of Lands Valuation Board stating that 60% of the first tranche compensation payment be made to the Surveyor.

He said the direct result of these compensation payments claims spearheaded by Krachiwura has increased tensions and litigation in the Pai Traditional area especially Pai and Otiso.

“Was the integrity of these payments as a result compromised? He querried adding “recent developments involving aggrieved persons bringing legal action against government due to questionable actions of public servants should be of concern to all Ghanaians with high ethics with regards to the government compensation payments.”

“It should be obvious that compensation money paid to individuals who lied to the government despite protestations of people of the area affected will eventually end up causing the GoG financial loss when legal action is brought against it. Therefore, the good people of Ghana should demand an investigation of this self-appointed group, and the Lands Valuation Division of the Lands Commission to account for all taxpayer's compensation paid on behalf of GoG to our fellow Ghanaians affected by the construction of the Akosombo dam,” he added.

GYEEDA TRIAL ADJOURNED UNTIL OCTOBER

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By William Yaw Owusu

Tuesday, July 22, 2014

The much-touted trial of the former National Coordinator of National Youth Employment Programme (NYEP) and Philip Akpeena Assibit has been adjourned until October 6, 2014.

The case could not proceed as scheduled yesterday because the prosecution failed to produce a witness in court.

This is not the first time the prosecution had asked for more time in the case; even before the cross-examination of Mohammed Pelpuo, head of the Business Development Unit at NYEP who is the PW3, was concluded.

Principal State Attorney, Evelyn Keelson, told the packed Financial Court presided over by Justice Afia Asare-Botwe that the intended witness was engaged in another assignment.

“We were supposed to call our next witness but unfortunately, he is engaged in another assignment,” she explained.

She said the witness’ notice to the AG’s Department was “so short” that the prosecution was unable to get a replacement.

Uncharacteristic of a criminal trial, the court had no option but to grant a long adjournment, taking into consideration the impending legal vacation which commences in August and ends in October.

Accused Persons

Incumbent Member of Parliament (MP) for Chiana-Paga, Abuga Pele and Philip Akpeena Assibit, Chief Executive Officer (CEO) of Goodwill International Group (GIG) are standing trial for the various roles they played, which the Attorney General’s Department said caused huge financial loss to the state.

Until last year, Abuga Pele was the National Coordinator of National Youth Employment Programme (NYEP), now the GYEEDA.

He is accused of wilfully causing financial loss to the state to the tune of GH¢3,330,568.53 while Assibit is being tried for defrauding the state of an amount equivalent to $1,948,626.68.

The two have pleaded not guilty and are currently on bail.

Charges                                               

The NDC MP is facing six counts of wilfully causing financial loss to the state under Section 179A (3) of the Criminal Offences Act, 1960 Act 29, two counts of abetment under Sections 20(1) and 131(1) of the Criminal Offences Act, 1960 (Act 29) and one count of intentionally misapplying public property, contrary to Section 1(2) of the Public Property Protection Act, 1977 (SMCD) 140.

Mr. Assibit, who is the first accused person on the other hand, is facing six counts of defrauding by false pretences, contrary to Section 131(1) of the Criminal and Offences Act 1960 (Act 29) and five counts of dishonestly causing loss to public property contrary to Section 2(1) of the Public Property Protection Act, 1977 (SMCD) 140.

Fresh Request

Immediately the case was adjourned, Raymond Bagnabu, counsel for Assibit asked the court to order the Economic and Organized Crime Office (EOCO) to release his client’s vehicles for them.

“Even though we have satisfied the bail conditions, EOCO is keeping my client’s vehicles. We have complained severally but they don’t seem to hear our case.”

The judge asked counsel to do the formal thing by filing an application saying “you know what to do...don’t come with an oral application.”

GHA SUBMITS CP 90M EUROS PAYMENT CERTIFICATE

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By William Yaw Owusu

Friday, July 18, 2014

The Ghana Highway Authority (GHA) yesterday tendered in evidence payment certificates issued to Messrs Construction Pioneers (CP) at the ongoing Commission of Enquiry investigating the payment of judgement debts.

The company received €85.2million in addition to £7million during the tenure of Betty Mould-Iddrisu when she was Attorney General and Minister of Justice.

The Ghana Highway Authority (GHA) has already confirmed that CP was paid millions for road project contracts some of which the construction giant did not even execute in the 1990s.

An instance was the Akim Oda-Kade/New Abirem – Nkawkaw road in the Eastern Region which CP never executed but managed to claim loss of profit with interest from the Government of Ghana.

Appearing before Sole-Commissioner Justice Yaw Apau of the Court of Appeal yesterday, the Executive Director of GHA, Michael Abieteh Abbey said they retrieved certificates covering the overlay of Biriwa-Takoradi road project.

However, he said they were still searching for the Accra Roads certificate popularly referred to as the Makola project as well as the Obuasi township roads project certificate.

The GHA has already testified that, the initial contract sum for Akim Oda - Kade/New Abirem – Nkawkaw, for which payment was made for no work done, was GH¢10.6million (¢106billion) with a foreign component of 155million Deutsche Marks.

The Assin Praso – Yamoransa road the authority confirmed as ‘shoddily done’ by CP also attracted a contract sum of GH¢1.5million (¢15.2billion) with a foreign component of 28.3million Deutsche Marks which was subsequently paid.  

The Biriwa-Takoradi road was executed at initial contract sum of GH¢2.9million (¢29.5billion) with a foreign component of 49.4million Deutsche Marks and evidence already before the commission was that CP was overpaid by 44million Deutsche Marks for that project while the Obuasi township roads were completed and the government issued a defects liability certificate.

Mrs. Jacqueline Avotri, a staff officer of Economic and Organized Crime Office (EOCO) formerly Serious Fraud Office (SFO) also testified on the investigation the office conducted into the compensation claims of some of the Volta flooded areas following the construction of the Akosombo Dam.

She tendered in evidence documents covering Apaso and Makango areas and said they were yet to retrieve document covering Pae areas.

The acting Corporate Estates Officer of the Volta River Authority, Emmanuel Tetteh Martey assisted by Patrick Mireku of the Legal Department of VRA also tendered in evidence, documents covering compensation for buildings, land, farm holdings as well as list of settlers of the Volta flooded areas.

Seth Mensah Dumoga, Director of Legal Affairs at the Ministry of Food and Agriculture testified in the compensation paid Carmichael Family following the government’s acquisition of the 10,000 acre land for Aveyime Livestock Project where there is a cattle ranch in the Volta Region.

He said the ministry’s investigation revealed that Messrs Bator Agricultural Industries Limited had a link with W.F. Clarke Ghana Limited who were the original owners of the livestock project and Carmichael family run the project.

He also said the land was acquired from about 12 families but it was only the Carmichael Family that had been paid compensation since the government’s acquisition in 1976.

Mr. Dumoga said the land acquired was intact and the government intends to use it for a profitable venture.

'CRIC IS UNLAWFUL'

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By William Yaw Owusu

Thursday, July 17, 2014

A United States-based law professor Stephen Kwaku Asare is challenging the legality of Constitution Review Implementation Committee (CRIC) which is leading efforts to amend certain aspects of the 1992 Constitution.

The committee, chaired by Professor Emmanuel Victor Oware Dankwah, is currently embarking on an initiative to solicit views of the public on how to go about the review of the constitution.

Reacting to a forum purportedly organized by CRIC and addressed by Prof. Dankwah in Kumasi recently, the US-based professor said the committee has no power to embark on the initiative.

“I wish to bring it to the attention of the general public that Professor Dankwah and his so called Constitution Review Implementation Committee have no power under the laws of Ghana to schedule a referendum and/or to amend the Constitution of Ghana.”

Explaining why the committee is illegal, he said “it is common knowledge that the constitution can only be amended by its terms. It is also well known that Parliament is the sole body that can initiate, consider and propose amendments to the Constitution.”

“Parliament’s power to amend the constitution is not only plenary and exclusive but also cannot be delegated to or usurped by the President, the so-called Constitution Reform Commission or the Constitution Review Implementation Committee,” he argued.

Prof. Asare said further that “it is trite knowledge that the President’s role in constitutional amendment is limited to the ministerial task of giving assent to bills properly passed by Parliament.”

“We maintain, as we have from 2010, that the President has no power to set up a commission to initiate amendments or draft amendment bills to the Constitution,” he added.

He said “to the extent that the President has usurped Parliamentary powers and misappropriated Article 278(1) to traverse the amendment architecture emplaced by Chapter 25 of the Constitution, C.I. 64 setting up the Constitution Review Commission, all actions taken by the Commission, the establishment of the Constitution Review and Implementation Committee and all its actions remain unlawful, unconstitutional, impermissible, null, void and of no effect.”

“As Professor Dankwah and his Committee should be aware, the Supreme Court of Ghana has been asked to issue an order directing the President, the Chairman and Members of the Constitution Review Commission, the Chairman and Members of the Constitution Review Implementation Committee, the Attorney General, their deputies, agents, or employees or any other servant or agent of the Republic to permanently cease and desist from taking any actions that seek to amend or otherwise disturb the Constitution in so far as such actions are inconsistent with Chapter 25 of the Constitution.”

Prof. Asare said since the litigation before the Supreme Court was pending, the President, the Chairman and Members of the Constitution Review Commission, the Chairman and Members of the Constitution Review Implementation Committee, the Attorney General and their assigns were required “to cease and desist from taking any actions that seek to amend or otherwise disturb the Constitution, in so far as such actions are inconsistent with chapter 25 of the Constitution.”

“Since 1992, Ghana has chosen the path of law and order in the management of its affairs. It is therefore regrettable that Professor Dankwah and his Committee have chosen the path of taking actions that are contemptuous of the Supreme Court.”

He assured that “we plan to litigate this matter to its logical conclusion and call on the Chairman of the so-called Constitution Review Implementation Committee to terminate with immediate effect all activities related to altering and amending the Constitution.” 

DEFUNCT COMPANY FIGHTS BoG OVER JUDGEMENT DEBT

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By William Yaw Owusu

Thursday, July 17, 2014

The now defunct Astek Fruits Processing Limited has petitioned the Judgement Debt Commission to impress on the Bank of Ghana (BoG) to pay them ¢3.394,141.83 as interest for work done for Ghana in the 1990s.

However, the central bank insisted that Astek was paid all debts owed by the government and urged the Sole-Commissioner investigating the payments of judgement debts, not to entertain the once vibrant fruit processor.

Appearing before Justice Yaw Apau of the Court of Appeal as Sole-Commissioner yesterday, Dr. Albert Ababio Owusu, owner of Astek Fruit Processing Limited said his company was involved in the exportation of fruits and fruit juice to Libya in exchange for crude oil as part of a bilateral agreement between the two governments.

He said Astek was paid after each shipment by the BoG but the last two shipments of February 4, 1996 and March 11, 1996 respectively were not paid by the central bank and after three years they were compelled to seek legal redress.

He testified that on November 11, 1998 Astek secured a $1.7million judgement against the BoG and on February 1999, the bank paid the amount together with part of the interest but never paid ¢3.394,141.83 which they claimed were the rest of the interest.

He admitted that they calculated the interest on their own without the input of the court’s registry that had given the order and said “we have been working behind the scenes to get the central bank to pay us the rest of the amount but it has not happened.”

Rejecting Astek Fruit Processing’s claim, Mrs. Elly Ohene-Adu, Head of Banking said documents available indicated that at a meeting, officials of the company agreed to accept $1.702,736.00 judgement debt together with $241,164.17 as interest as well as ¢350million as cost.

She said even though, the court had ordered the amount to be paid in cedis, the parties compromised the initial judgement for the plaintiff to receive the payment in dollars adding “Bank of Ghana could not have paid dollars contrary to what the court ordered.”

Mrs. Ohene-Adu said from 1999, Astek never showed any indication that the government still owed them until August 19, 2009 when they sent a letter complaining about the interest paid saying “we wrote back to tell them that we could not accede to their request.”

AG's REFUSAL BROUGHT JUDGEMENT DEBT

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By William Yaw Owusu

Thursday, July 17, 2014

The Attorney General’s (AG) refusal to coorporate with an independent referee appointed by a High Court to look into claims filed by Africa Automobile Limited (AAL) led to an award of GH¢8.3million paid by the government to the vehicle dealing firm.

According to Ben Korley, a Chartered Accountant with Messrs Intellisys the AG did not show any interest when they wrote to government’s lawyer as independent referee, requesting them to provide information on the Ministries Departments and Agencies whom AAL claimed were owing them.

He told the Commission of Enquiry investigating the payment of judgement debts that since the AG did not get back to them, Messrs Intellisys went ahead to do the assessment based on what AAL had submitted before the court.

AAL Services

AAL reportedly provided services as well as supplied spare parts to 17 MDAs from 1994/95 to 2010 but the government failed to pay for them and that compelled them to go to court, suing the AG.

Unfortunately, when AAL filed the suit against the government, the Attorney General did not contest the matter compelling the Commercial Court to enter a default judgement in favour of the claimant.

Documents available to the commission indicated that the debts owed by the government to AAL stood at GH¢145,917.76 but it ballooned to GH¢8.3million in 2010 due to compound interest on the debt.

Furthermore, in the 2006 audited report of the company, the amount owed by all AAL debtors including the Ministries, Departments and Agencies (MDAs) stood at GH¢96,823.51 but when the company sued in 2006 they claimed that the total debt owed by the MMDAs was GH¢145,917.76.

AAL’s justification

When Mohammed Hijaazi, Executive Chairman and Managing Director of AAL appeared before the commission recently, he confirmed that AAL had indeed been paid GH¢ 8.3million as judgement debt and justified the payments.

When Counsel for the commission, Dometi Kofi Sorkpor asked Mr. Hijaazi whether he paid GH¢6.1million as tax on the GH¢ 8.3million collected as indicated by the GRA, the witness said he did not intend to pay.

“The interest was a loss that the creditor suffered at the hands of the MDAs and I would not declare that as a profit. I have not and I would not. It was a loss and not profit.”

When counsel asked further whether AAL sued for loss of business he said “No, I haven’t. In fact you have reminded me now and I am going to do that.”

“For 15 years, we have been reminding the MDAs of their contractual obligation but they did not but here I am today trying to make my claims and I am being branded a criminal,” Mr. Hijazi lamented.

Independent referee

Testifying yesterday, Mr. Korley said he did not refer to the MDA’s to have their comments because the AG was the defendant and they had written specifically to them for information on the matter saying “there was no response from the AG following the letter we sent to them to help us reconcile the figures put before the court by AAL..”

“There was no defence…the order from the court requested that all information should be routed through the Registrar but it never came.”

Mr. Korley added that it did not come to his notice that the MDAs prior to the matter going to court had denied owing AAL for services the company had rendered them and added that he based his work on the purported agreement signed between the AAL and the MDAs.

Financial statement

He said he did not study the financial statement of AAL in the course of the work for the simple reason that the matter before the court had specific information for them to validate adding “what we set out to do was to confirm and obtain information from both parties to validate the claim and to apply the interest as stated in the agreement that was before the court. It did not refer to the financial statement of the plaintiff at that time.”

Mr. Korley said they analyzed documents from 1993 to 2008 adding “the compound interest was applied on the basis of the agreement. It was 30 days credit and that was used to calculate per the agreement. It was such that if payment was not done within 30 days, it was to start accruing interest monthly.”

The challenges we face was that the defendant (AG) did not help our work at all. At the time the calculation started, the actual claim was GH¢1,053.09 and the total amount at the close of 2006 stood at GH¢154,717.76. This ballooned to GH¢8.3million in 2010 due to compound interest on the debt.”

“In my opinion that agreement was an unfair one knowing that in the government system it will take more than 30 days by just the processes and giving a credit for just 30 days was rather on the low side,” and added that “it could have happened that because they (AAL) were not getting their money, they might have understated their income.”

“The government accounting system is on cash basis and if the person who received the invoice did not submit it for processing, it will never show in the government’s account. And it will make the claimant look as if he’s claiming for something that did not belong to him,” before calling for an improvement in the government accounting system.

The Sole-Commissioner has expressed dismay at the attitude of the AG’s office for its handling of cases before the commission and subsequently directed the commission to write to the AG to urge them to respond to its subpoenas. 

AG SUED OVER CONSTITUTIONAL AMENDMENT

Posted on: www.dailyguideghana.com

By William Yaw Owusu

Thursday, July 16, 2014

The proposed amendment of certain aspects of the 1992 Constitution could be in jeopardy following a suit filed against the Attorney General by Professor Stephen Kwaku Asare.

According to the Professor of law, the President has no power to set up a commission to initiate amendments or draft amendment bills to the Constitution as is currently being done.

He therefore, filed the suit at the Supreme Court challenging the executive arm of government for what he described as the President’s usurpation of parliamentary powers and misappropriation Article 278(1).

The plaintiff wants a declaration that “the Constitution Review Commission of Inquiry Instrument, 2010, C.I. 64 is null, void and of no effect as it contravenes the letter and spirit of Article 289(1) of the 1992 Constitution, in that the effect, if not the intended purpose, of C.I. 64 is to usurp powers that the 1992 Constitution expressly, exclusively and specifically conferred to Parliament.”

He wants another declaration that the powers granted to the President under Article 278(1) to “appoint a commission of inquiry into any matter of public interest” does not include the power to establish a commission to review and propose amendment bills to the Constitution where such powers to review and propose amendment bills to the Constitution have been expressly, exclusively and specifically conferred to Parliament.

The plaintiff further wants a declaration that Article 278(1) does not grant the President “an all-purpose commissioning power” but only gives him the power to commission an independent inquiry to investigate and establish the truth relating to an entity’s affairs, activities or some specific occurrence that is in the public interest.

Prof. Asare also wants a the highest court of the land that the Constitution Review Implementation Committee (CRIC) set up by the President to finalize amendment bills for both the entrenched and non-entrenched provisions is alien to the Constitution.

The plaintiff wants the court to declare that any of CRIC’s activities directed at finalizing amendment bills that touch on any and all aspects of the Constitution, whether entrenched or non-entrenched, are unlawful, unconstitutional, impermissible, null, void and of no effect.

He further wants a declaration that the 1992 Constitution can be amended only in accordance with the express provisions of Chapter 25 of the Constitution and that the President’s role in any such constitutional amendments is limited to the ministerial tasks stipulated in Article 290(6), 291(4) and 292(a).

He also wants a declaration that Parliament’s power to amend the Constitution as stipulated in Article 289(1) is plenary and exclusive and another declaration that Parliament’s power to amend the Constitution as stipulated in Article 289(1) cannot be delegated to or usurped by the President.

Prof. Asare wants an order directing the President, the Chairman and Members of the Constitution Review Commission (CRC), the Chairman and Members of the CRIC, the Attorney General and their assigns to “permanently cease and desist from taking any actions that seek to amend or otherwise disturb the Constitution in so far as such actions are inconsistent with Chapter 25 of the Constitution.”

Summary of Particulars

It is the contention of the Plaintiff that “the Constitution can only be amended by its terms” and added that “Parliament is the sole body that can initiate, consider and propose amendments to the Constitution.”

“Parliament’s power to amend the Constitution is not only plenary and exclusive but also cannot be delegated to or usurped by the President, the Commission (CRC) or the Committee (CRIC). The President’s role in constitutional amendment is limited to the ministerial task of giving assent to bills properly passed by Parliament,” the plaintiff averred.