The Case Against Waterville And Alfred Agbesi Woyome

...as presented by Mr Martin Amidu

A declaration that the conduct of the 3rd Defendant jointly with Austro Invest Management Ltd (a foreign registered and resident company subsequently liquidated abroad on 26th July 2011) in making claims upon and including the issuance of a Writ of Summons and Statement of Claim in Suit No.

RPC/152/10 dated 19th April 2010 against the Government of Ghana with the written support of the 2nd Defendant and receiving payments thereto premised upon alleged breaches of the said two Agreements dated 26th April 2006 between the 2nd Defendant and the Government of Ghana when the 3rd Defendant with the said Austro Invest Management Ltd, and the 2nd Defendant knew that the said two Agreement were international business or economic transactions which had not been laid before and approved by Parliament to become operative and enforceable is inconsistent with and in contravention of article 181 of the 1992 Constitution.

An order directed at the 2nd and 3rd Defendants to refund to the Republic of Ghana all sums of money paid to them severally or jointly upon or as a result of the unconstitutional conduct of the 1st Defendant in purported pursuance of the two inoperative Agreements dated 26th April 2006 or any other unconstitutional Agreement as having been made and received by them in violation of Article 181 of the Constitution.

And for such further orders or directions that this Honourable Court may deem appropriate to give full effect or to enable effect to be given to the spirit and letter of the Constitution in this matter generally and particularly Articles 2 and 181 of the Constitution.”

2. The reliefs in declarations 6, 7, 9, 10, 12, 13, 14 and 15 which relate to the 1st and 3rd defendants/respondents are relevant for the purposes of this application for review before this Court. The most relevant parts of the plaintiff/applicant's statement of case filed in this Court on 22nd June 2012 along with the writ of summons (as far as they relate to and affect the 1st and the 3rd defendants/respondents) are contained in paragraphs 23, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44 of the statement of case of the plaintiff. The crux of the dispute between the plaintiff/applicant and the 1st and 3rd defendants/applicants in so far as they relate to the purported enforcement by the 3rd defendant/applicant of the unconstitutional contracts dated 26th April 2006 between the 2nd defendant and the Government of Ghana can be found not only in Paragraph 27 of the statement of case of the plaintiff/applicant as quoted in the judgment of the Supreme Court under reference (out of context) at pages 32 to 33 in this review application but read together within the context of the paragraphs indicated in the preceding sentence. All the paragraphs are relevant but particular paragraphs for ease of reference are paragraphs 30, 31, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, and 44. For purposes of space the plaintiff/applicant wishes to quote paragraphs 35 to 42 and paragraph 44 inclusive of the said statement of case of the plaintiff/applicant for purposes of the clarity of the submissions herein as follows:

“35. The Plaintiff says in addition that as a result of the 4th Defendant's letter dated 18th August 2009 contesting the 2nd Defendant's claims after the change in Government, the 2nd Defendant in pursuance of his unlawful claims wrote a letter to the 1st Defendant then represented by Hon. Mrs. Betty Mould-Iddrisu, on 20th April 2010 supporting the unlawful claims of the 3rd and 4th Defendants when the 2nd Defendant knew that as an assignee of Vamed the 2nd Defendant had taken over all the agents and liabilities of the Vamed in all the transaction of the stadia contracts. (A photocopy of 2nd Defendant, Waterville letter dated 20th April 2006 to the 1st Defendant is annexed herewith and marked Exhibit “MAA13” for ease of reference)

36. The 1st Defendant and his officers at the time acted in contravention of the Articles 181 of the Constitution in accepting the claims of the 3rd and 4th Defendants for the sum of €22,129,411.74 or its equivalence in Ghana Cedis of GH¢41,811,480.50 as petitioned for an alleged foreign or international financial engineering of resources for the Government of Ghana and authorizing the Minister for Finance and Economic planning to pay same.

37.The Plaintiff will contend that as a result of the actions and conduct of the 1st Defendant then represented by Hon. Mrs. Betty Mould-Iddrisu, breaching the provisions of Articles 181 of the Constitution as interpreted by this Honourable Court as far back as 26th January 2005 in Attorney-General v Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271, the 4th Defendant issued a purported Writ and Statement of Claim on 19th April 2010 in suit No. RPC/152/10 in the High Court based solely upon the 1st Defendant's purported settlement. (A photocopy of the Writ and Statement of claim are annexed herewith and marked Exhibit “MAA14” and “MAA15” respectively for ease of reference).

38. The Plaintiff will contend also that the said Writ and Statement of Claim (on the face of it) disclosed no locus standi or a cause of action vested in the 3rd and 4th Defendants to have grounded jurisdiction in the High Court and are null, void, and without effect whatsoever.

39.The 4th Defendant subsequently amended the Writ to raise the claim to GH¢51,283,480.59 without any objection from the 1st Defendant or the High Court: the Statement of Claim was never amended and still contains the original claim as agreed with the 1st Defendant represented by Hon. Mrs. Betty Mould-Iddrisu.

40. The Plaintiff will contend further that in spite of the 3rd and 4th Defendants not having any locus standi or cause of action to have commenced an action in the High Court against the Republic of Ghana the 1st Defendant then represented by Hon. Mrs. Betty Mould-Iddrisu, stood by and the High Court also upon the glaring facts entered a default judgment against the Republic of Ghana in favour of the 3rd and 4th Defendants without any jurisdiction whatsoever.

41. The said amount of GH¢51,283,480.59 has been paid to the 3rd and 4th Defendants in violation of Article 181 of the 1992 Constitution by the Defendants.

42. The Plaintiff says that this Honourable Court has the authority within these proceedings to exercise its supervisory jurisdiction under Article 132 of the 1992 Constitution to issue such orders or directions in these proceedings in relation to the above Writ and Statement of Claim for which the Plaintiff herein maintains the High Court had no jurisdiction for lack of locus standi and cause of action in the 4th Defendant, then suing as a plaintiff.

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44. The Plaintiff will contend that an Agreement and a Supplementary Agreement made between the 2nd Defendant and the 4th Defendant as an agent of the 3rd Defendant, and dated 26th November 2010 and 2nd February 2011 respectively, show that the 2nd, 3rd, and 4th Defendant knowingly collaborated to making unlawful claims against the Republic of Ghana by actions and conduct inconsistent with and in contravention of 181 of the 1992 Constitution in transactions which had not been laid before and approved by Parliament. (A photocopy each of the said Agreement and Supplementary Agreement is annexed herewith and marked Exhibit “MAA16 and “MAA17” respectively for ease of reference).”

3. The 1st and 3rd defendants/respondents in their pleadings sought to defeat the plaintiff/applicant's action in the Supreme Court by pleading the existence of litigation between the 1st and 3rd defendants/respondents on the basis that the commencement of a completely fresh action by the 1st defendant/respondent in the High Court on 28th July 2010 to set aside a consent order pursuant to a binding default judgment of the High Court made on …. 2010 took away the cause of action vested in the plaintiff/applicant under Articles 2(1)(b) of the 1992 Constitution to enforce same.