Supreme Court Orders Waterville To Refund Cash



Alfred WoyomeThe Supreme court yesterday ordered  Waterville Holdings (BVI) Limited to refund to the State the amount of 25 million Euros paid to it in 2010. In its judgement the nine-member panel of Justices unanimously declared as unconstitutional the basis on which the amount was paid to the construction firm.

It, however, declined to order businessman Alfred Agbesi Woyome to refund the GHC 51 million paid  him by the State as judgement debt on jurisdictional grounds, since the issues relating to Mr. Woyome are matters within the purview of the High Court trying the case.
According to the court, the issue that Mr. Woyome had no contract with the government and should not have been paid any money is an issue for determination by the Commercial Division of the High Court.

The court held that the two agreements on stadia projects, dated April 26, 2006 which formed the basis of the payment in 2009 was “inchoate”, in view of the fact that the government on August 1, 2006, cancelled the contracts, rendering them null and void.
Yesterday’s unanimous decision followed the suit initiated by former Minister of Justice and Attorney General, Martin Alamisi Amidu, against Waterville and Mr. Woyome on claims that they colluded to unlawfully appropriate State money on the basis of the two ineffective contracts.

He thus sought to among others recover all the huge sums of monies paid to Waterville and businessman Alfred Agbesi Woyome, over the renovation of the Accra Sports Stadium and the El-Wak Stadium, for the CAN 2008 tournament. The court, chaired by Justice Prof. S.K. Date-Bah, had Justices Julius Ansah, Mrs. Sophia Adinyira, Ms. Rose Owusu, Jones Dotse,Anni Yeboah, Paul Baffoe Bonnie, Sule Gbadegbe and Vida Akoto Bamfo as members.

The court took the view that the two agreements, which were entered into between the Government of Ghana and Waterville on April 26, 2006 constituted an international business transaction under Article 181(5) of the constitution and ought to have been approved by Parliament.

Accordingly, the court declared that the two agreements are inconsistent with and in contravention of Article 181 (5) of the country’s constitution and thus null, void and without operative effect, whatsoever. Granting five of the 15 reliefs that were sought by Mr. Amidu who initiated the action in his capacity as a citizen of Ghana, the nine-member panel held that there is no liability of the Government of Ghana to Woyome in view of any evidence of a contract between them.

The court took the view that the issues relating to Mr. Woyome “are already in controversy at the High Court suit by the 3rd defendant (Mr. Woyome)….This is a matter which should be heard and determined by the High Court and not this court”.
According to the court, its refusal to grant the reliefs relating to Mr. Woyome is “without any prejudice to any reliefs the High Court may grant in the future”.

Further, the court said that the claim by Mr. Amidu to the effect that the AG’s posture in handling the mediation that led to the payment of the monies goes to show it “was purposeful and deliberate” knowing that there was no contract is an issue for the High Court to be determined.

The court explained that it did not find any issue of constitutional enforcement in that issue which it said could be more of professional negligence.

Lawyers for Waterville had argued that Mr. Amidu lacked capacity to have initiated the action against and that the action is an abuse and usurpation of the AG’s powers but the court dismissed that argument as having no legal basis because Mr. Amidu’s action is in line with the provisions of the constitution.

Reliefs granted
1. A declaration that the Agreement entitled “Contract for the Rehabilitation (Design, Construction, Fixtures, Fittings and Equipment) of a 40,000 Seating Capacity Baba Yara Sports Stadium in Kumasi, Ghana” entered into on 26th April 2006 between the Republic of Ghana and Waterville Holdings (BVI) Limited of P. O. Box 3444 Road Town, Tortola, British Virgin Islands is an international business or economic transaction under Article 181(5) of the 1992 Constitution that could only have become operative and binding on the Government of Ghana after being laid before and approved by Parliament.

2.  A declaration that the Agreement entitled “Contract for the Rehabilitation (Design, Construction, Fixtures, Fittings and Equipment) of a 40,000 Seating Capacity Ohene Djan Sports Stadium and the Upgrading of the El Wak Stadium in Accra, Ghana”  entered into on 26th April 2006 between the Republic of Ghana and Waterville Holdings (BVI) Limited of P. O. Box 3444 Road Town, Tortola, British Virgin Islands is an international business or economic transaction under Article 181(5) of the 1992 Constitution that could only have become operative and binding on the Government of Ghana after being laid before and approved by Parliament.

3. A declaration that the two Agreements each dated 26th April 2006 as stated in reliefs (1) and (2) herein not having being laid before and approved by Parliament pursuant to Article 181(5) of the 1992 Constitution is each inconsistent with and in contravention of the said Article 181(5) of the Constitution and consequently null, void and without operative effect whatsoever.

4.  A declaration that the conduct of the 2nd Defendant in making a claim for and  securing payment through mediation on an alleged breach of contract of the said two Agreements between the 2nd Defendant, (a wholly owned foreign registered and resident company) and the Government of Ghana dated 26th April 2006 when the 2nd Defendant knew that the said two Agreements were international business or economic transaction with loan components that had not been laid before and approved by Parliament under article 181 of the 1992 Constitution to become operative and enforceable is inconsistent with and in contravention of the Constitution.

Reliefs the court declined jurisdiction on
5. A declaration that the conduct of the 1st Defendant in paying sums of money in Euros to the 2nd Defendant in purported pursuance of claims by the 2nd Defendant arising out of the said two Agreements each dated 26th April 2006 as stated in reliefs (1) and (2) herein is inconsistent with and in contravention of the letter and spirit of the 1992 Constitution, particularly Article 181(5) thereof and is each accordingly null, void, and without effect whatsoever.

6. A declaration that all transactions and claims  by the 3rd Defendant a Ghanaian citizen with one Austro-Invest Management of CH-6302 ZUG Untermuhli 6, Switzerland, (a foreign registered and wholly owned company liquidated on 26th July 2011) premised upon the said two Agreements between the Republic of Ghana and the 2nd Defendant, Waterville Holding s (BVI) Limited,  constitute international business transactions within the meaning of Article 181(5) of the 1992 Constitution to be laid before and approved by Parliament to become operative and binding on the Republic of Ghana.

7. A declaration that the transaction or any purported transaction between the 2nd Defendant, Waterville Holdings (BVI) Limited, (a foreign registered and resident company), 3rd Defendant, a Ghanaian citizen , with Austro-Invest Management Limited (also a foreign registered and wholly owned company now liquidated), and the Government of Ghana to syndicate foreign loans and other financial assistances from foreign financial institutions and sources that financially encumbers the Republic of Ghana for the stadia projects, the subject matter of the two Agreements each dated 26th April 2006 aforementioned constitute an international business or economic transaction within the meaning of Article 181(5)of the 1992 Constitution  for the purposes the operability of the transaction.

8. A declaration that on a true and proper interpretation of Articles 181(3), (4), (5), and (6) and the spirit of the 1992 Constitution the Republic of Ghana cannot incur liability for any foreign or international loan or expenses incidental to such foreign or international loan transactions without Parliamentary approval of the transaction for it to be operative and binding on the Republic of Ghana.

9. A declaration that conduct of the 1st Defendant in paying or ordering the payment by the Republic of Ghana  of claims raised by the 3rd Defendant with the said Austro-Invest premised upon a purported foreign or international financial engineering agreement arising  out of the said aforementioned  two Agreements of 26th April 2006 and/or any other international business Agreement with the Government of Ghana which were never laid before or approved by Parliament is inconsistent with and in contravention of the letter and spirit of the Constitution, particularly Articles 181(3),  (4), (5), and (6) of the 1992 constitution thereof  and are according null, void and without effect whatsoever.

10. A declaration that the High Court which purported to and assumed jurisdiction in an action commenced by the 3rd Defendant (as Plaintiff) on 19th April 2010 in Suit No. RPC/152/10 against the 1st Defendant claiming damages for breach of contract in an international business transaction contrary  to Article 181 of the 1992 Constitution and entered judgment in default of defencce against the 1st Defendant  acted without jurisdiction: consequently those  proceedings and others consequent thereupon of the said High Court are null, void, and without effect whatsoever.
11. A declaration that the conduct of the President of the Republic of Ghana in stating to the nation in an interview with Radio Gold on 23rd December 2011 that the two international business  Agreements of 26th April 2006 and others incidental to it created liabilities for the Republic of Ghana for which the Government of Ghana had to pay to the 2ndDefendant, and 3rd Defendant with the said Austro-Invest as judgment debts are inconsistent with and in contravention of Article 181 of the 1992 Constitution and undermine efforts to defend the Constitution.

13. 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.

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