By Stehen Kwabena Effah
THE Supreme Court yesterday declared as “premature,” the referral to it by the Accra Commercial Court of the three constitutional issues for interpretation in the litigation of the sale of government’s 70 per cent shares in Ghana Telecom.The court was of the view that some relevant materials which raise fundamental issues have not been put before it by the Accra Commercial Court which referred the three constitutional issues to the Supreme Court.
It has consequently suspended its hearing of the matter to enable the lower court call for those documents and make them available to the Supreme Court before the matter proceeds.
The issues referred to are whether an agreement executed by the government and ratified by Parliament can be challenged in the High Court, whether any procedural or substantive errors or defects in the Sale and Purchase Agreement was or can be cured by the ratification by Parliament and whether Articles 61.6, 10.7, 12, and 13.21 of the Sales and Purchase Agreement (SPA) dated July 3, 2008 and executed by government, Vodafone International Holdings BV and Ghana Telecom contravene the country’s constitution and therefore render the agreement void.
The Supreme Court adjourned the case indefinitely after counsel for the plaintiffs in the case at the lower court, Bright Akwetey, had drawn the court’s attention to the fact that efforts made at securing those documents at the High Court had proved futile.
The documents are: the original version of the Sales and Purchases Agreement (SPA) executed on July 3, 2008 between Ghana government and Vodafone International Holdings BV and Ghana Telecom, and amended version of the SPA.
Others are a copy of the report of the Inter-Ministerial Committee on the SPA which was presented to the government in October 2009, proceedings of the Inter-Ministerial Committee on the SPA, a copy of the disclosure letter dated July 25, 2008, and a report on the valuation of assert of Ghana Telecom.
The rest are a report/or statement on the value of Volta Communication, a report on the asset of Onetouch, a report on valuation of the asset of Fibre Co., a report/or statement of the value of the asset of Fibre Co., a report of the Transaction Advisor on the SPA and the inventory of the assets of Ghana Telecom.
Mr.Akwetey argued that such documents, especially the original version of the SPA, were relevant to the court in determining the three constitutional issues and urged the court to order the A-G to provide copies of those documents.
He said that the issue of procedural errors was extensively dealt with by the Inter-Ministerial Committee noting that its report “contains a lot that could help us.”
But counsel for Ghana Telecom, Norbert Kudjawu, contended that it would be extraneous for the Supreme Court to make an order for those documents, indicating that “that is the duty of the High Court”.
He added that those documents were not relevant to the three constitutional issues referred for interpretation.
He said that the High Court judge, Justice Henry Coffie, considered the relevancy of all those documents to the case before the referral.
In view of Mr. Akwetey’s submission, the court said he ought to have drawn the High Court’s attention to the fact that it was pre-mature in referring the matter, and thus adjourned the case sine die for those documents to be provided.
The court was chaired by Justice Gerogina Wood, and had Justices William Atugubah, S.A. Brobbey, Date Baah, Sophia Adinyira, Rose Owusu, Jones Dotse, Anin Yeboah and B.T. Aryeetey as members.
The substantive suit was initiated by Professor Agyemang Badu Akosah, Kossi Dedy, Dr.Nii Moi Thompson, Naa Kordai Assimeh, Rodaline Imoru Ayarna and Kwame Jantua in their capacity as Ghanaians.
They are contending that the Sale and Purchase Agreement entered into among the Government of Ghana, GT and Vodafone for the sale of 70 per cent of GT for $900 million was against the public interest and constituted an abuse of the discretionary powers of the government.
According to them, the decision of the government to transfer the assets, property, shares, equipment, among others, to Vodafone was obnoxious, unlawful and inimical to the public interest, particularly when no consideration was required to be paid by Vodafone for the stated assets.
The group argued that the three Ministers of State and the managing director of GT who signed the agreement on behalf of the government did not exercise the requisite level of circumspection required of them as public officers in relation to public property.
The plaintiffs are, therefore, seeking reliefs from the court, including a declaration that the agreement entered into by the government was not in accordance with the due process of law and was, therefore, a nullity.
They are also demanding that the court should give an order declaring that the forcible grouping of autonomous state institutions established by law — Voltacom, Fibreco, VRA Fibre Network and VRA Fibre Assets — with GT to form the purported Enlarged GT Group was unlawful and, therefore, void and of no legal effect.
The plaintiffs are further praying for an order of perpetual injunction to restrain the government from disposing of its 70 per cent share of GT to Vodafone or any other foreign company without first exploring avenues for funding and better management in Ghana.
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