Government asked to be mindful of obligations the law imposes on it

The Ghana Bar Association (GBA) on Wednesday appealed to the Government to be mindful of the obligations that the law imposes on it in peculiar issues.

A statement jointly signed by Mr. Frank W. K. Beecham, National President and Mr. Peter R. Zwennes, National Secretary; the GBA said, "As a Bar, we are wary of the rising cost to the Republic in what has become known as “Judgment Debts,” arising from Government actions and inactions that the courts have found to have breached the law, including breaches of contract.

It said, "We respectfully urge the Government to take all steps necessary to avoid such debts and their inevitable run on already scarce national resources.

"It is the GBA’s hope that more and more public-spirited persons would be willing and prepared to raise before our courts, such issues of national importance which would not only enrich our constitutional jurisprudence and land law, but contribute to a debate that should result in establishing more transparent standards in the acquisition of State properties and in our effort to build a rich and prosperous democratic country."

The statement in reaction to the Cabinet decision taken after the Supreme Court's decision to the effect that, the State is no longer interested in selling the property in question; in respect of this, a 50-year lease has already been given to and paid for by Mr Jake Obetsebi-Lamptey, National chairman of the New Patriotic Party, and it is the fact of this lease which gave rise to the entire case, and the decision of the Supreme Court.

It said, "Subsequent to this Cabinet decision, there have been quite a number of commentaries, statements and views expressed by various persons and institutions suggesting immorality, unconstitutionality and disregard of contractual obligations.

The statement said the Bar recognised the right of the Government to act, but within the constraints of its (i) contractual obligations contained in the Lease Document executed between the Government (as lessor) and Mr. Obetsebi-Lamptey (as lessee), and (ii) statutory obligations under the provisions of the Conveyance Act, 1973 (NRCD 175).

It said, "The Bar also recognises the power of the Government to compulsorily take possession of or acquire any property in the public interest or for a public purpose, in accordance with Article 20 of the Constitution and the State Lands Act, 1962 (Act 125).

"In this regard, while the Bar respects the right of the Government to conduct itself in any manner that it considers fit with respect to the announced Cabinet decision, we respectfully urge the Government to be very mindful of the obligations that the law imposes on it in this matter.”

The statement said The GBA noted that “the public discussions that had followed the decision of the Supreme Court (SC) in Okudzeto-Ablakwah & Another v. Attorney-General &Another (Suit No. J1/4/2009), the SC addressed three key issues, namely, whether or not (i) the allegations of corruption, cronyism, discrimination, conflict of interest, arbitrariness and abuse of discretionary power were proven, (ii) the allocation of the property was in the interest of the public, and (iii) the said allocation amounted to a breach of the Constitution and a wrongful exercise of discretion vested in public officers.

"We also note that the plaintiffs originally filed the action against the Republic (acting by the Attorney-General) and some state institutions, and that it was later that Mr.Jake Obetsebi-Lamptey (the 2nd Defendant) successfully applied to join the action.

The statement said it was against this background that the Supreme Court delivered its decision.

It said, "We say “decision” because, technically, in matters before the SC (and indeed any court of the land that sits with more than one judge, such as the Court of Appeal), there is only one decision of the Court.

"Thus, even if there is a dissenting opinion, the Court is said to have spoken once, and that voice is captured in what is commonly referred to as the “majority decision”. Therefore, whether some of the issues involved in the instant case were resolved by a “unanimous decision” and others by a “majority decision” of the court, all we have is one decision that rejected the case and submissions of the plaintiff, and by necessary implication, those of the Attorney-General.

"From the Bar’s standpoint, it is perfectly legitimate to raise the questions that the plaintiffs raised, with respect to the acquisition of State properties, whether by politicians or any other persons. We however, cannot disagree with the Supreme Court that to successfully impugn any such transaction on any of the grounds alleged by the Plaintiffs, one would have to prove each of those grounds by the standards of proof imposed on and required of all Plaintiffs appearing before our courts, by the law."

The statement said in the absence of such evidence, the GBA could not fault the Supreme Court’s decision on any legal grounds.**