'Refund All the Money' - Supreme Court Orders Waterville

By Stephen Kwabena Effah

     June 15, 2013

The Supreme Court yesterday ordered Waterville Holdings (BVI) Limited to refund to the State an amount of 25 million Euros paid to them 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 to him by the State in 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 has 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 a 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 the State’s 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 rehabilitation 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 3^rd 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

 ....And Orders Probe Into Lawyers Conduct

The Supreme Court has questioned the professional conduct of lawyers who superintend over the legal action, and events that led to the payment of GHC 51 million and 25 million Euros to businessman Alfred Agbesi Woyome and Waterville Holdings (BVI) Limited respectively.

According to the court, if the lawyers, including some State Attorneys, have been diligent, perhaps they might have taken a different stance on the issue and that would have averted the payment of huge sums of state money.

It held that there were enough documentary and material evidence to show that both Waterville and Mr. Woyome had no contract with the government to warrant the payments made to them.

It has consequently referred the conducts of all the lawyers and the State Attorneys involved in the case to the General Legal Council for investigation and appropriate action to be taken on them.

In a concurring decision to the court’s unanimous judgement yesterday in which Waterville was ordered to refund all the monies paid it by the Government of Ghana, Justice Jones Dotse said the two “entered into an alliance to create loot and share brigade” against the State.

The court’s outcry followed a complaint about the conduct of the lawyers in the case which formed part of the legal action initiated agaisnt the two and the Attorney General on claims that they colluded to unlawfully appropriate the State’s money on the basis of two ineffective contracts of April 26, 2006.

Mr. Amidu thus sought to among others recover all the huge sums of monies paid to Waterville and businessman Alfred Agbesi Woyome over the rehabilitation of the Accra Sports Stadium and the El-Wak Stadium for the CAN 2008 tournament

The Court Registrar is expected to file the complaint with the General Legal Council with a copy of the judgement as directed by the court presided over by Justice Prof. S.K. Date-Bah. Other members of the panel were Justices Julius Ansah, Mrs. Sophia Adinyira, Ms. Rose Owusu, Jones Dotse,Anni Yeboah, Paul Baffoe Bonnie, Sule Gbadegbe and Vida Akoto Bamfo.

The Supreme Court also indicted the trial court (the High Court that gave the judgement debt) in the case for not doing due diligence in the grant of default judgement that resulted in the negotiations leading to the consent judgement.

The court held that there was “absolutely no basis for the claim against the state by 2^nd and 3^rd defendants (Waterville and Mr.Woyome),” adding if the lawyers, especially the State Attorneys had been more diligent, they would have noticed that the claim by the two “cannot hold water”

For instance, he said if Woyome’s lawyers had been meticulous, they would have noticed that he had no authority to have secured the judgement debt.

Consequently, Justice Dotse asked the principal actors in the case currently pending before the High Court in which the State is seeking to recover the GHC 51 million paid Mr. Woyome “to put their utmost best in the adjudication of the case.

He said lawyers should ensure that their conduct is within the framework of the professional regulations

Touching on the conduct of some judges, he said they should ensure that cases brought before them are not only legitimate but founded on principle of law.

On the issue of default judgement, he said the courts should not just give judgement in default on the face of claims being made but should always interrogate issues to determine its merit before granted.

He said it is imperative for trial courts to be on alert to detect collusions by parties, adding that trial courts as control should ensure that claims are scrutinised to avoid an abuse of the judicial system.

The court commended Mr. Martin Amidu who brought the action against Mr. Woyome and Waterville and said it was sad that not a single civil society group or lawyer came to his aid.

“The plaintiff (Mr. Amidu) in my opinion should be recommended for his vigilante role in preventing wanton dissipation of public funds,” Justice Dotse said.