By William Yaw Owusu
Thursday, July 16, 2015
A United
States-based law Professor S. Kwaku Asare has shredded the Justice Yaw Apau’s
Judgement Debt Commission leaked report that NPP leader Nana Addo Dankwa
Akufo-Addo caused financial loss to the state.
Reacting to
another lawyer’s declaration that the legal effect of adverse findings in the
Apau might bar Nana Akufo-Addo from contesting in the 2016 presidential
elections, Prof. Asare said “in fact, nothing in this finding, even accepted at
face value, will disqualify Akufo-Addo or anyone from any elective office.”
The judgement
Debt Commission report, yet to be released officially, is mired in controversy,
with accusations that the Sole-Commissioner did a shoddy job but subsequently
received promotion to the Supreme Court.
“For starters, Justice
Apau's contention that ‘it was as a result of this failure to bring to the
attention of the London High Court the settlement attempts that led to the
entry of judgment ex-parte in the sum of US$47 million against GNPC’ is
factually barren, legally incompetent and logically bankrupt,” Prof Asare said.
“By Justice
Apau's own account, attempts were being made to settle the claim at all
material times, initially by the GNPC and later by the Attorney-General (AG),”
adding “parties must bring a final settlement, not settlement attempts, to the
notice of the court. Thus, it is wrong, as a matter of law, for Justice Apau to
have made such a finding.”
Judgement decree
The erudite
professor said that “to worsen matters, Justice Apau does not, as he is
required to, support this finding with any statement from the judgment decree.
In fact, there is no evidence that he sought or obtained the judgment decree.”
“For if he had
done so, the judgment decree would have indicated the basis for the default
judgment, and saved him from making the embarrassing finding that assigns
absence of notice of settlement attempts as the proximate cause of a default
judgment.”
Ex-parte judgment
He said that in
effect, the contention that it was the failure to bring this settlement attempt
to the court’s notice that led to the entry of judgment in the sum of $47
million “is speculative, at best, and puerile, in reality, because the ex-parte
judgment was set aside, as most default judgments are, when the parties reached
a settlement.”
“Justice Apau notes
in the report that that he cannot question the AG's decision to settle the
litigated claim. He is essentially correct but incoherent when he acknowledges
the AG’s decision to settle the litigated claim and his theory of the default
judgment,” he added.
He said the very
fact that the claim was settled undermined Justice Apau’s theory of the ex-parte
default judgment.
Preposterous conclusion
“Moreover, as it
turns out, he ends up not just questioning this decision but, worse, by
reaching the preposterous conclusion that settling a claim of $47M for $19.5M
is causing financial loss to the State.”
“For reasons that
are not indicated in the report, Justice Apau failed to examine the underlying
speculative activities that triggered the cause of action. Yet, the analysis of
these troubled transactions, which ultimately led to the cause of action and
the ensuing settlement, represent the nation’s best hope of understanding this
particular judgment debt and the lessons to be drawn therefrom.”
He said that while
the Justice was quick to find fault with the AG, he failed to credit to the AG
for dispensing with the services of Bindman, the UK legal firm that was
representing GNPC.
“Nor does the
Justice tell us how much had been paid to Bindman and how much the Republic
saved from the dismissal. The bottom line is that the AG settled a $47 million
claim for $19.5M. The default judgment entered by the Court is of no moment, as
evidenced by the stark fact of the settled amount.”
Disqualification
On whether the
findings could disqualify Nana Akufo-Addo or anyone from running for office, Prof
Asare said “assuming they are accepted at face value, the answer is absolutely
not!”
“This is because the
Commission does not make a specific finding of incompetence, assets
acquisition, fraud, misuse/abuse of office, or willful action, as set out by
the Constitution. “
“The Commission
does not even tell us why the AG failed to make appearance on the day the ex
parte judgment was given. It makes no attempt to communicate with anyone in the
AG’s office or to even get the court decree.”
He said “in fact,
the finding does not even name a person. It names the Attorney General, who
happens to be the nominal party in all suits in which the government is
involved.”
“ Nana Addo, who
was Attorney General, at the time, was not even invited to the Commission. Nor
does the commission give any evidence of the extent of his involvement or
knowledge in the events leading to the ex parte judgment, which, as has been
explained, had little legal significance.”
“To hold a
particular Attorney General, here Nana Addo, personally accountable for any
lapse that occurs on any suit in which he is named a nominal party is to
abandon logical and legal reasoning.
“Such a general
finding is not the type of specific finding that the Constitution contemplates
will disqualify people from holding elective office. The threshold for
disqualification is high and rightly so!”
