Waterville's Judgment Debt To Be Refunded Is Euro 47,365,624.40
A number of Ghanaians have called me to ask how much Waterville is to refund to the Republic of Ghana as a consequence of the decision and orders of the Supreme Court dated 14th June 2013. This is apparently because of late the media has carried the story that Waterville has taken the Government to international arbitration to challenge an order for the refund of €25 million made by the Supreme Court. No explanation appears to be coming from Government sources to indicate the total amount of refund to be made by Waterville is €47,365,624.40. I have therefore deemed it necessary to address this issue relating to the Waterville decision and order as the citizen public interest Plaintiff in this matter.
The Supreme Court formally granted the Attorney General capacity to enforce the judgments debts and related matters on 31st March 2015. This is after almost two years of delay on the part of the Government to ask for that direction from the Court. My views on the delay in making the application and why I think it has the tendency to frustrate future citizen public interest plaintiff's is contained in my affidavit filed on 30th March 2015 to the Attorney General's motion for leave to enforce the decisions and order.
I was the only party to file an affidavit in answer to the Attorney General's motion for leave to enforce the judgments and orders in the case and the public has a right to know my views as the public interest citizen plaintiff. I will at least be sending a soft copy of the affidavit to the media as an attachment. The certified true copy of the directions given by the Supreme Court on 31st March 2015 was not available to me at the time of writing this but I will post a copy on my web site for public consumption as soon as I get a copy.
I pray that the delay in taking steps to enforce the judgments and orders in this case does not affect the ability of the Republic of Ghana to retrieve all sums involved with the accompanying interest.
My views and conclusions on the judgment debts are as they appear here under.
THE WATERVILLE CONTRACTS AND PAYMENTS
The Waterville contract and payments have two components or aspects.
The 1st Component of the Waterville Contract
The first component or aspect was the payment by the Government of Ghana of €22,365,624.40 as certified by Building Industry Consultants Ltd (BIC) to Waterville through the sub-contractors. See pages 4 to 5 of the Supreme Court judgment dated 14th June 2013. See particularly the finding of the Supreme Court on the last paragraph of page 5 which states that: “The value of the work previously undertaken by the 2nd defendant was duly confirmed by the consultants for the project, Building Industry Consultants Ltd (hereafter referred to as “BIC”). The Government of Ghana subsequently paid for all the work certified by BIC, totaling some €22,365,624.40. This payment was problematic since it appears to have used a restitutionary route to bypass the legal consequences of an inchoate international business transaction to which the Government was a party, which had not been approved by Parliament in terms of article 181(5).”
On page 37 of the judgment the Supreme Court after reviewing the case against the 2nd Defendant, Waterville, from pages 33 said at pages 37 in respect of this aspect of the case as follows: “This is an extraordinary account of the State's view of its liability to the 2nd Defendant. In our view, it was fundamentally erroneous in ignoring the effect of article 181(5) of the 1992 Constitution. From the analysis earlier made of the penumbra effect of article 181(5), we affirm that there is no liability of the State to 2nd defendant. The 2nd defendant is thus obliged to return all monies paid to it pursuant to the transaction…….”
On page 33 to 34 the Supreme Court states that: “The Governments action in paying the 2nd defendant for the work it did prior to the conclusion of the terminated 26th April agreement was unconstitutional, according to the analysis set out above. According to the plaintiff's averment in his Statement of Case, verified by affidavit: (Court quotes paragraph 22 of the Statement of Case and continues on page 34)
Thus, the Supreme Court found as a fact that: “The Government of Ghana subsequently paid for all the work certified by BIC, totaling some €22,365,624.40” which was unconstitutional, and nobody can wish this away. It ought to be noted that at this stage there was no contract between the Government of Ghana and the sub-contractors through whom the Government arranged to pay the restitution to Waterville. They were sub-contractors to Waterville and therefore if Waterville had no right to any restitution or re-imbursement, the sub-contractors would have no claim to make any deductions from the €22,365,624.40 paid to Waterville through them.
This explains why the Supreme Court stated as follows: “Relief 14 is granted to the extent that the order is directed at the 2nd defendant, requiring it to refund to the Republic of Ghana all sums of money paid to it in connection with the two inoperative Agreements dated 26th April 2006 and the work done on the stadia (emphasis supplied).” It is clear from the foregoing that to remain silent with this information to the public on this quantum of the judgment debt when Waterville goes to international arbitration is to curtail the reach of the Supreme Court decision and order in respect of the work done and paid to Waterville in the sum of €22,365,624.40.
The 2nd Component of the Waterville Contract
The second aspect of this contract apart from the certification of BIC and payment for the alleged work undertaken by the 2nd defendant, Waterville, and paid for by the NPP Government was the claim made by the 2nd defendant in the letter dated 9th Mach 2009 to NDC Government leading to mediation and payment of €25million to Waterville. See pages 6 to 7; and pages 33 to 41.
The total amount to be refunded by Waterville in accordance with the decision of the Supreme Court that: “Relief 14 is granted to the extent that the order is directed at the 2nd defendant, requiring it to refund to the Republic of Ghana all sums of money paid to it in connection with the two inoperative Agreements dated 26th April 2006 and the work done on the stadia.”: is restitution paid for the work done on the stadia as certified by BIC and paid for €22,365,624.40 and mediated payment of €25million making a total refund of a payment of €47,365,624.40.
PAYMENT OF INTEREST ON THE SUMS TO BE REFUNDED BY WATERVILLE
The Supreme Court inadvertently did not direct the payment of interest to the Republic in the above cases but corrected this in the Isofoton case when it specifically ordered that: “3. Interest is to be paid on the sum adjudged above from date of its receipt by the 2nd defendant, in accordance with the Court (Award of Interest and Post judgment Interest) Rules 2005 (CI 52).” The Republic of Ghana is entitled to interest on the amounts paid to Waterville and the motion for leave to enforce the decision and orders of the Court shows that interest has to be claimed on the total amounts from date of receipt to date of payment.
No matter the insults and name calling by the Government and my own political party, the NDC, nothing will stop me from pursuing this GARGANTUAN constitutional rape on the people of Ghana to its logical conclusion as long as I have life in me. Putting Ghana First instead of Governments is the only salvation for this our dear Republic.
IN THE SUPREME COURT OF JUSTICE
ACCRA – AD 2015
CIVIL MOTION NO: J8/41/2015
MARTIN ALAMISI AMIDU
PLOT 355 NORTH LEGON RESIDENTIAL AREA PLAINTIFF/RESPONDENT
1. THE ATTORNEY-GENERAL
MINISTRY OF JUSTICE 1ST DEFENDANT/APPLICANT
2. WATERVILLE HOLDINGS (BVI) LIMITED
P. O. BOX 3444
ROAD TOWN 2nd DEFENDANT/RESPONDENT
BRITISH VIRGIN ISLANDS
3. ALFRED AGBESI WOYOME
HOUSE NO. 16B 3rd DEFENDANT/RESPONDENT
6TH STREET TESANO – ACCRA
AFFIDAVIT OF MARTIN ALAMISI AMIDU (THE INTERESTED PARTY/PLAINTIFF) HEREIN
I, Martin Alamisi Amidu of 355 North Legon Residential Area Legon, Accra make oath and say as follows:
1. I am the deponent and the Interested Party to the application by the Attorney General (the nominal 1st Defendant in the substantive action and review application herein) for leave to enforce judgments and orders of this Court dated 14th June 2013 and 29th July 2014 respectively.
2. I have been served with the Attorney General's application filed on 23rd January 2015 and the accompanying affidavit including two supplementary affidavits filed on 31st January 2015 and 18th March 2015.
3. Pursuant to this Court's ruling on my review application dated 29th July 2014 the Attorney General purported to file an entry of judgment in this Court on 15th August 2014 in purported pursuance of the judgment and order of the Court and Article 2(1) and (2) of the 1992 Constitution which related only to the 3rd Defendant/Respondent/Judgment Debtor: No entry of judgment in respect of the 2nd Defendant/Respondent/Judgment Debtor, Waterville Holding (BVI) Ltd has even been filed in this Court after this Court's decision of 14th June 2013.
4. The 3rd Defendant/Respondent/Judgment Debtor applied to this Court on 26th October 2014 to set aside the entry of judgment by the Attorney General (the nominal 1st Defendant/Respondent/Judgment Creditor in the case).
5. On 27th October 2014 I filed an affidavit in support of the setting aside of the entry of judgment by the Attorney General on the grounds that it unconstitutionally undermined the decision of the Supreme Court dated 29th July 2014. (A photocopy of my said affidavit is annexed herewith and marked Exhibit “MAA1” for ease of reference).
6. When the application to set aside came on for hearing on 28th October 2014 the 3rd Defendant/Respondent/Judgment Debtor apparently realizing the futility of his grounds of application sought leave to withdraw same: this Court struck out the patently offending entry of judgment in the interest of substantial justice while allowing the 3rd Defendant/Respondent/Judgment Debtor to withdraw his application.
7. The incumbent Attorney General and her office throughout the hearing and conclusion of the substantive action and review application has been a nominal Defendant on behalf of the Government of Ghana by virtue of Articles 58 and 88 of the 1992 Constitution and the binding subsisting interpretative decisions of this Court.
8. I believe that by the structure, design and scheme of the 1992 Constitution, particularly Articles 2, 58, 88 and 130 of the Constitution, the Attorney General (now the Judgment Creditor on behalf of the Republic of Ghana) is vested with the Constitutional mandate of entering judgment and orders, and taking steps to enforce same after this Court has made decisions and orders at the behest of a citizen in the public interest against or in favour of the Government which she represents in a nominal capacity such as in this action.
9. I further believe that the structure, design and scheme of the 1992 Constitution enjoins the Attorney General/Judgment Creditor for the Republic in this case to enter judgment and take steps to enforce declarations and orders made by this Court against the Government of Ghana even if the declarations and orders are against an act or conduct of the incumbent Attorney General, which is not the case in this matter.
10. I am convinced that the Attorney General or even the President of Ghana against whom this Court makes declarations and/or orders at the behest of a citizen in the public interest is enjoined by the doctrine of necessity and in the spirit of Articles 58 and 88 of the 1992 Constitution to take steps to ensure compliance with and enforcement of the decisions and orders.
11. In the premises I also believe that by the Constitutional scheme the Attorney General/Judgment Creditor in this case does not need this Court to grant her leave to perform her Constitutional duty under Articles 58 and 88 of the Constitution to enter judgment and to take steps to enforce decisions of this Court or any other Court when a citizen in the public interest obtains judgment on behalf of and in favour of the Republic of Ghana which it is her lot to ensure are loyally, faithfully, and dutifully executed for the benefit of the Republic of Ghana.
12. I believe further that but for the Constitution specifically apportioning the primary responsibility to the Attorney General as the Judgment Creditor of the Republic for purposes of taking steps to enforce and execute all judgment debts owed to the Republic, I, as the citizen, public interest Plaintiff should, perhaps, have been the proper person seeking leave of this Court to take steps to enforce the judgments and orders for the refund of the Judgment Debts to the Republic and not the Attorney General.
13. The Attorney General has stated in paragraph 7 of her supplementary affidavit filed on 31st January 2015 that this Court ruled on 5th November 2014 that even though the Supreme Court Rules, 1996 (C. I. 16) did not provide the means of enforcing the Court's judgment or order, this Court has such power by virtue of Article 129(4) of the 1992 Constitution.
14. In spite of this Court's ruling clearly stating that it has power to enforce its own judgments and/or orders the Attorney General never entered judgment in this Court in terms of the declarations and order made by the Court on 14th June 2013 or apply for directions under Rule 5 of the Supreme Court Rules, 1996 (C. I. 16) as to how to proceed in this matter until 23rd January 2015 when she filed this application not for directions but for leave to enforce the judgment or orders, her Constitutional duties notwithstanding.
15. I believe that the Attorney General and her office have been indolent in taking almost two years to approach this Court not for prescription of the practice and procedure under Rule 5 of the Supreme Court Rules, 1996 (C. I. 16) but for leave for the Attorney General to enter and to take steps to enforce the judgment and orders of this Court in respect of the 2nd Defendant/Respondent/Judgment Debtor, Waterville, given on 14th June 2013.
16. I believe further that the Attorney General and her office have also been indolent in taking almost eight months to even apply to this Court for leave to take steps to enforce the review decision dated 29th July 2014.
17. I am of the belief that the Attorney General is also deliberately, knowingly, and in contempt of the orders of this Court concealing other payments made by the Government of Ghana to the Defendants/Respondents/ Judgment Debtors pursuant to the two inoperative Agreements dated 26th April 2006 by suppressing the facts from this Court: for example, a Writ and Statement of Claim filed on 2nd March 2010 by the 3r Defendant/Respondent/Judgment Debtor shows that he had earlier been paid the sum of GH₵110,500.24 on 8th February 2010 through another action and was again seeking interest on same from the High Court (A scanned photocopy of the Writ and Statement of Claim of 2nd March 2010 is annexed herewith and marked Exhibit “MAA2” for ease of reference).
18. I am also of the firm belief that the Attorney General on behalf of the Government of Ghana has refused or failed to act timeously and properly to secure the judgment debt of the cumulative amount of Forty Seven Million, Three Hundred and Sixty Five Thousand, Six Hundred and Twenty-Four Euros and Forty Cents (€47,365,624.40 – made up of €22,365,624.40 as certified by BIC, and €25 million mediation payment) through processes such as applying for absconding warrant or other orders against the Local Manager of the 2nd Defendant/Respondent/Judgment Debtor preventing him from leaving the jurisdiction of this Court or to give security for the payment of the Judgment Debt as the 2nd Defendant/Judgment Debtor is an off-shore foreign registered limited liability company and can disappear without trace.
19. The consequence of the foregoing is the ingenious attempt by the Local Manager of the 2nd Defendant/Respondent/Judgment Debtor to contend that he has ceased to represent the company after the judgment and orders of this Court: see the further supplementary affidavit filed by the Attorney General on 18th March 2015 in this application.
20. I believe that at least since 30th January 2015 the Attorney General should have taken steps to ensure the availability of the local representative of the 2nd Defendant/Respondent/Judgment Debtor at all times in Ghana as a guarantee for the payment of the Judgment Debt while this Court hears this application: this does not appear to have been done, or intended.
21. I am of the firm believe that the Attorney General is abusing the process of this Court by bringing this application long after the decision and orders of this Court for leave to enforce them and thus closing the stables after the horses might have fled and thereby trying to shift any blame for her refusal or failure to take steps to ensure enforcement and execution against the 2nd Defendant/Respondent/Judgment Debtor timeously onto the Courts should this off-shore foreign company latter be untraceable for levying execution.
22. I also believe that in spite of the fact that these judgment debts were occasioned by the indolence of the Government of Ghana in not complying with Article 181 (5) of the 1992 Constitution, the Attorney General, a quasi-judicial officer has a responsibility to act independently and impartially on behalf of the Republic of Ghana (as distinct from the Government of Ghana which appointed her) in accordance with the taught traditions of law respecting the office of the Attorney General to take steps to have had the judgment and orders of this Court enforced long ago.
23. In view of the time lapse between the decision and/or orders of this Court in this matter it is my belief and prayer that the interest of substantial justice in accordance with the letter and spirit of the Constitution will be served should this Court on the basis of the further supplementary affidavit filed on 18th March 2015 by the Attorney General in these proceedings for leave to enforce the judgment and orders, order an absconding warrant or other restraining order to issue against the Local Manager of the 2nd Defendant/Respondent/Judgment Debtor to prevent him from leaving the jurisdiction of this Court or give sufficient security for the refund of the payments thereof until the final execution of the judgment and/or orders of this Court.
24. I believe that an order or orders restraining the Local Manager of the 2nd Defendant/Respondent/Judgment Debtor from leaving the jurisdiction until the conclusion of the process of execution or to give sufficient security to pay the Judgment Debt together with the accompanying interest will prevent the similar situation in which the original 3rd Defendant (Austro-Invest per Ray Smith) in the substantive action in anticipation of a possible court suit within the jurisdiction of this Court liquidated that foreign company in Zug, Switzerland on 26th July 2011 while on 17th November 2011 the same Ray Smith instructed Lithur, Brew & Co, ( in which the incumbent Attorney General was a senior partner), who commenced Suit No. AC 96/2012 in the High Court, Automated/Fast Track Division for the recovery of his portion of the monies paid to the 3rd Defendant/Respondent/Judgment Debtor (then the 4th Defendant in the substantive suit): “in connection with, arising from or relating to Suit No PC 152/2010 titled Alfred Agbesi Woyome v Attorney General,…”. (A photocopy of the attestation and of the translated copy of the Commercial register of the canton Zug, by Dr. J. D. Umpley, and an application by Lithur, Brew & Co on behalf of the said Ray Smith for Preservation and/or Interlocutory Injunction filed on 8th December 2011 is each annexed herewith and marked Exhibits “MAA3” and “MAA4” respectively for ease of reference: Motion No J1/2/2013 for prescription of practice and procedure filed on 16th October 2012 and dealt with by this Court in the substantive action contains all exhibits on this matter).
25. The letter and spirit of Article 2 of the Constitution will be rendered nugatory should successful actions thereunder be unenforceable because parties have absconded from the jurisdiction or disposed of their properties and bank accounts after this Court's judgment and orders: there would be no incentive for citizens, such as I, to go to the trouble, expense and pain of vindicating and defending the 1992 Constitution.
26. The trouble, enormous expenses, energy, verbal attacks, and insults I have gone through in asserting the citizen's constitutional right under Article 2 of the 1992 Constitution in the public interest would have been needless and a sham should the whole orders or any part thereof of this Court to the Judgment Debtors to refund the respective sums of money owed the Republic, and the consequential interest that follows as a matter of cause and now in accordance with the Court (Award of Interest and Post Judgment Interest) Rules, 2005 (C. I. 52) go unenforced.
27. The involvement of the Government of Ghana in the creation and distribution of the unconstitutional payments entailed in this action and the fact that Austro-Invest represented by Ray Smith (a client of the law firm of which the Attorney General was a senior partner) was a joint beneficiary with the 3rd Defendant/Respondent/Judgment Debtor has the tendency to create the unavoidable perception that those responsible for taking steps for the enforcement of the decisions and orders in this matter are unable to do so impartially due to conflict of interest in spite of the doctrine of necessity which requires otherwise.(A photocopy of letter making public allegations of conflict of interest by the 3rd Defendant/Respondent/Judgment Debtor against the Attorney General and her public admissions of having been a lawyer for Ray Smith of Austro-Invest in her firm of Lithur, Brew & Co are annexed herewith and marked Exhibits “MAA5” and “MAA6” for ease of reference).
28. I believe that taking steps to enforce the judgment and/or orders in this application is not a Constitutional matter for which I should not be entitled to compensation for my time, resources, and other cost for the trouble of being dragged through post judgment applications by the Attorney General who pays no fees or expenses for actions brought by or against her office in any Court in Ghana.
WHEREFORE I swear to this affidavit as an Interested Party, and the Plaintiff in the substantive action and review application.
SWORN AT ACCRA THIS …….
DAY OF MARCH 2015 DEPONENT
COMMISSIONER OF OATHS
AND FOR SERVICE ON:
1. THE ATTORNEY GENERAL, ATTORNEY GENERAL'S DEPARTMENT, MINISTRIES, ACCRA.
2. 2ND DEFENDANT/RESPONDENT PER ITS LOCAL MANAGER, ANDRE MARIA ORLANDI, BUNGALOW NO. 10 TRASSACO YARD, OFF ABURI ROAD, PANTANG, ACCRA.
3. 3RD DEFENDANT/RESPONDENT ALFRED AGBESI WOYOME, HOUSE NO. 16B, 6TH STREET TESANO, ACCRA
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