DON'T WASTE OUR TIME- Judge tells STX partner as she throws out suit

By Stephen Kwabena Effah
December 22, 2011

The legal action brought against the STX Korean partners to disengage them from taking part in the execution of the STX housing project was yesterday dismissed by the Accra Commercial Court on technical and procedural grounds.

The court described the action as “incompetent in law” and a waste of the court’s time, and accordingly awarded a cost of GH¢3,000 against the Ghanaian partner, B.K. Asamoah who initiated the action.

The parties had on November 15, informed the court that they had agreed to negotiate to resolve the shareholding impasse which had resulted in the legal tussle to pave the way for commencement of the project.

However, the court which was expected to hear and adopt the terms of the settlement was informed yesterday that the proposed negotiations between Mr. Asamoah and his Korean partners, STX Korea, had broken down.

Sources close to the Korean partners told the Times after court proceedings that they did not agree with the terms which were drafted and sent to them in Korea to assent.

The court presided over by Justice (Mrs.) Gertrude Torkornoo therefore compelled the Ghanaian partner to move his application which sought a declaration that by the Korean partners’ failure to comply with the country’s investment statute, they cannot be shareholders in STX Ghana to operate in Ghana.

Moving the application, counsel for the Ghanaian counterparts, Carl Adongo, argued that STX Korea ought not to be allowed to operate in Ghana because they have failed to satisfy the requirements under the Ghana Investment Promotion Council Act.

According to him, STX Korea failed to pay its equity contribution in STX Ghana as required under the law, pointing out that the about 10,000-dollar wired to STX Ghana through the Bank of Ghana was a loan granted the Ghanaian partner.

He showed the court e-mail communication in which the Koreans demanded full repayment of the amount.

“Indeed, it is a loan…it cant be said to be an investment,” he said, and added that even if the amount was indeed their equity contribution, they could not turn round to demand repayment with interest.

He said by their action, the Korean partners have breached the investment statute which cannot be compromised and asked the court to declare them non shareholders in STX Ghana.

However, counsel for the Koreans, Mr. Osarfo Buabeng opposed the application on procedural grounds.

According to him, the Ghanaian partner did not follow the right procedure in instituting the legal action against his client saying that since the applicant is challenging the investment in STX Ghana, he cannot initiate the action under Section 21(7) of the Companies Act.

He contended that the applicant ought to have caused the action to be initiated with a writ instead of the originating motion and therefore asked the court to dismiss it.

Upholding the submission by Mr. Buabeng, Justice Torkornoo chastised Mr. Adongo for using unpalatable words in his pleadings, and not taking a cue from the court’s advice on the technical aspect when his attention was indirectly drawn to it.

The action which was commenced on September 27 is against STX Engineering & Construction, STX Construction Co. Ltd and eight other Koreans appointed by the latter to represent them on the former as directors.

The Ghanaian partner claimed that the Korean counterparts breached their obligations under the Joint Venture Agreement by woefully failing to provide all the technical, engineering and construction expertise required for the project, aside its failure to arrange for finances.

In the motion, the applicant contended that the Korean partners on May 6, 2011 wrote a letter to terminate the Joint Venture Agreement of November 15, 2009 and the heads of agreement between the two partners which it duly accepted.

It said having accepted STX Construction Company Limited’s “unilateral decision” terminating the agreements, it has since ceased to be a partner of the STX Engineering and Construction Ghana Limited, which is to execute construction of 200,000 houses.

By the action of STX Construction, the applicant argued that it has “no right of representation on STX E&C Ghana Limited’s board”.

It claimed that the Korean partners’ breach completely prejudiced the success of the project in that it contravened its statutory obligation to make the appropriate investment by way of direct equity contribution as a partner to the project in terms of its obligation as a foreign investor.

The applicant therefore sought among other reliefs, a declaration that by terminating the Joint Venture Agreement and Heads of Agreement, the respondents have renounced their membership of STX E&C

It is further sought an order of injunction restraining STX Construction Co. Ltd as well as its seven directors from holding itself out and or purporting to act or discharge functions as shareholders of STX E&C.

Opposing the claims, the Korean partners indicated that STX Construction Limited still remains a member of the STX E&C an that all its appointees to the board of STX E&C have acted legally and lawfully at all material times.

They said, STX Construction Co. Ltd has paid fully for its 15,000 shares in STX E&C and remitted to Ghana a total of 1,009,964 dollars of which 15,819.21 dollars has been converted to cedis and credited to STX E&C account as its equity contribution.

Again, the respondents claim that STX Construction Co. Ltd has not executed any transfer of its shares, neither have the shares been affected by any law or statute,.

Besides they contended that the Joint Venture Agreement between STX E&C and STX Construction Co. Ltd was merely transitional and was to operate for only six months.

BNI invites Judge, others

By Stephen Kwabena Effah
December 21, 2o11

The Bureau of National Investigations (BNI) has invited four staff of the Judicial Service, including an Accra Circuit Court judge, to assist in its criminal investigations into the circumstances under which a cocaine exhibit mysteriously turned into baking soda.

The four, Mr. Eric Kyei Baffour, the judge who tried the case, Mr. Yussif Seidu, Deputy Court Registrar of the 28th February Courts, Mr. Daniel Nyatsidzi, and Mr. Mubarak Lawal, Clerk and Interpreter of the trial court, were expected to appear before the BNI yesterday morning.

A letter signed by the Judicial Secretary, Justice Alex B. Acheampong and dated December 19, stated that the Chief Justice Georgina Wood has granted the four staff the permission to report to the BNI Headquarters in Accra on December 20, at 9:00 to assist in the investigations.

Sources close to the invitees told the Times yesterday that the four were unable to report to the bureau as requested because they were appearing before the fact-finding committee set up by the Chief Justice to probe the incident.

Mr. George Asamani, counsel for Mr. Nyatsidzi, told the Times after the committee ended its public hearing yesterday that they had written to the BNI to give them a new date since it was impossible to have appeared when they were before the C.J. Committee.

On his part, Mr. Robert Kinsley Yeboah counsel for said they were going to meet with the BNI yesterday afternoon after the committee sitting.

The BNI investigations was prompted by a directive from Vice President John Mahama following the revelation by an Accra Circuit Court that a total of 1,020 grammes of tested cocaine tendered as evidence in court turned into sodium bicarbonate.

The substance, valued at 44,000 dollars which was initially tested as cocaine at the police forensic laboratory, later turned into baking soda upon a re-test. This led to the discharge of Nana Ama Martins who was being tried for possessing the drug without lawful authority last Tuesday.

The Cocaine Case- Prosecutors Defied C.J's Directive

By Stephen Kwabena Effah December 21, 2011

It has emerged that state prosecutors involved in the mysterious cocaine-turned-baking powder saga defied a directive from the Chief Justice Office to try the case in a High Court, the fact-finding committee probing the incident has heard.

A letter dated August 27, 2008 directed police prosecutors in the case involving Nana Ama Martins who was being held for possessing narcotic drug without lawful authority, to put the case before the Accra Circuit Court One to enable the police finish investigations.

It further asked the police to present the case docket to the Attorney General’s Department after it had finished with its investigations for a high court to be assigned later for the trial.

However, the State Attorney who prosecuted the case, Ms. Stella Arhin, told the committee at its last public hearing yesterday that she continued to try the case at the Circuit Court presided over by Mr. Eric Kyei Baffour because a lot had gone on when she took over the case from the police.

Further, Ms. Arhin who was recalled to be cross-examined on her evidence said she also thought taking the case from the Circuit Court to a High Court would have lengthen the trial, although she prepared the charge sheet in the name of High Court.

She also told the committee that she did not write any advice on the case docket as is the practice when cases are assigned to state attorneys, explaining that upon a study of the docket, she was convinced that they had enough evidence to prosecute so she got in touch with the investigator to get the witnesses ready.

Ms. Arhin admitted that the police cannot prosecute a narcotic case until an advice had come from the A-G Department.

She also told the committee that when the substance was tendered in evidence on September 27, and was opened, she did not smell the peculiar pungent characteristic of cocaine.

In his evidence as the last committee witness to testify, DSP Aidan Dery who handled the prosecution before the A-G took over, confirmed having seen the directive from the Chief Justice’s office.

He said the case was assigned to him in August 2008 and held brief for the A-G until March 2009 when he left the country for a UN mission in Sudan.

According to him, before he left, he handed over all the cases he was conducting including the instance case to another police prosecutor, ASP Mary Agbozo.

“When I returned around March 2010, my commander told me some of the cases I was handling were still pending so I should take over the prosecution of those cases including the Nana Ama Martins case” he said.

Following that directive, he said he went to the Circuit Court where the case was pending to find out the next adjourned date but he said he was told by the court clerk that they were searching for the court docket on the case which could not be traced at the time.

DSP Dery Said he was at the court one day to conduct other cases when the Nana Ama Martins case was called so he announced himself as the prosecutor.

He told the committee that the accused was not in court and upon enquiries, he was told by constable Joseph Owusu who is the investigator that the accused was granted bail by a High Court after which she jumped bail.

“I applied for a bench warrant for the arrest of the accused and it was issued by the current judge, Kyei Baffour,” he told the committee.

At the same time, he said he gave a directive to the investigator to process those who stood surety to be brought to court.

He said that he got to know that Ms Arhin had been assigned to the case on the day that the accused was arrested and put before court and thus linked her to the investigator in the case.

“I must also add that all along when the case was pending, we have done all the necessary things we have to do he said,” he said.

Under cross examination, he said he did not have anything to do with the substance at the time he handled the case, and noted that she did not even see the exhibit before.

Meanwhile, the four-member fact-finding committee ended its sitting yesterday afternoon after a four-day public hearing.

Eleven witnesses testified before the committee which was charged to establish the role played by the trial judge, Mr. Kyei Baffour, and other court officials, including the registrar and court clerk in the matter and other related issues.

Justice Agnes Dordzie, who chaired the committee, thanked all the witnesses for their cooperation and time, noting the committee was going to start evaluating the evidence adduced and prepare its report which would be sent to the Chief Justice.

The committee, which begun sitting on December 15 and was give up to December 22 to finish its work has Justice Abdulla Iddrisu, a High Court Judge, Mr. Nii Boye Quartey, Deputy Director in charge of Human Resource of the Judicial service and John Bannermas, Chief Registrar, as members.

The formation of the committee followed on Accra Circuit Court ruling on December 13 which revealed that a substance which was initially tested as cocaine, later turned into baking soda upon a re-test

The development led to the acquittal and discharged of Nana Ama Martins for possessing the drug without lawful authority.

I'M CLEAN - Says Trial Judge

By Stephen Kwabena Effah
December 20, 2011

The judge, Eric Kyei Baffour, who tried the case in which 1,020 grammes of cocaine exhibit worth 44,000 dollars mysteriously turned into baking soda, has absolved himself from any wrong doing in the case.

“I must say my lords, throughout this trial, I have acted with honesty, truthfulness, integrity and above all my lords, I have exhibited courage, firmness and conviction,” Mr. Kyei Baffour told the fact-finding committee set up to probe the incident.

In a resolute posture, he continued: “I have no dealings whatsoever with how exhibits from the court are kept. All that I know is, there is a cabinet in my chamber where the clerk keeps all the exhibits and he has the key,” he said at the committee when he took his turn yesterday to give evidence.

Mr. Kyei Baffour said when the substance was tendered in evidence by Cpl. Thomas Ayekase on September 27, it was marked as exhibit ‘C’ and after proceedings, put back in the envelope from which it was taken.

According to him, whenever he is to write a judgment or ruling, what he asks for is paper exhibits such as statements of witnesses and accused persons. “But as to something substantial like cocaine, cannabis, guns… I don’t need them to write my judgement so I have nothing whatsoever to do with those exhibits at all.”

Mr. Kye Baffour, told the four-member committee in his one hour evidence that to the best of his knowledge, the only person who has custody of the key to the cabinet at all material time is his clerk, Daniel Nyartsidzi.

He said on September 27, when the exhibit was tendered in evidence, he could not recall the exact time he closed but it would be about 3:00pm and came back to the court the next day at about 8:30 am.

When he reported for work, he said his interpreter informed him that the police called him to demand whether he gave an order for the immediate destruction of the substance the police tendered as cocaine”.

But the judge told the committee that he brushed that aside “because I thought that was quite unusual”, in that the investigator who tendered the substance, Cpl. Ayekase had not been cross-examined on the substance for him to order for its destruction, adding “it is never done”.

Mr.Kyei Baffour said the substance was brought to open court on September 28, upon a request by the defence counsel in the case, Kwabla Senanu who challenged the investigator under cross examination that the substance was not cocaine.

He said Mr. Senanu at that point prayed for an order for a re-test of the substance but not at the Police forensic laboratory, to which the State Attorney, Ms. Stella Arhin raised an objection which he overruled.

“I must state my lords, that the issue on the 28th of September 2011 as to the substance brought not being cocaine or having been changed, did not arise at all,” he said.

The judge defended his order for the re-test of the substance on the basis of a Supreme Court authority ( Jaxon-Smith versus KLM- SCGLR 438), noting that Mr. Senanu was not looking for the exclusion of that admitted exhibit ‘C’ (the substance) but was raising issues as to the genuineness and authenticity of exhibit ‘C’.

“My lords, I exercise my discretion based on that case and I ordered that I will grant the prayer of Mr. Senanu, for another test to be conducted on the substance,” he said and added that he retired to his chamber to enable the parties and the Deputy Registrar, Yussif Seidu to take a sample for the test.

Mr. Kyei Baffour admitted being angry with the State Attorney on November 22 when she inferred that since the substance was left in the court’s custody overnight, the court could have changed it.

He said his anger was not based on the events of September 28, but on the event of November 22 when the Ghana Standards Board analyst was being cross-examined by the defence counsel.

“First, she was not a stranger in my court and she knows the credibility of that court. Second, at the time she raised her objection on the 28, the issue of whether or not the substance had changed did not come in at all,” he said.

When he took his turn, counsel for Nana Ama Martins from whose custody the substance was retrieved upon her arrest in August 2008, told the committee that it was somewhere in July 2011 that he came into the case to handle only the substantive case.

According to Mr. Senanu his prayer to the trial court for a re-test was not at random but he noticed that when the substance was opened in court, the peculiar pungent scent characteristic of cocaine was absent.

Mr.Senanu who said he appeared before the committee to set the records straight on his role in the matter, told the hearing that “It was the conference I had with Nana Ama which emboldened me to challenge the substance”.

He said he did not object to the substance when it was being tendered and went in for what it is worth because he wanted to take everyone by surprise. “On 27th (September) I didn’t tell anyone I was going to raise an objection…I took them by surprise”.

According to him, immediately he left the courtroom on September 28, one police officer told him: “This objection you have raised is going to bring Tsunami.”

Cross-examined by Mr. Asiama Sampong, counsel for Ms. Arhin, Mr. Senanu said it was not true that he had a police docket in his custody during the trial, adding “ I have not done anything wrong by law”

He disagreed with Mr. Sampong that the pungent scent could only be evaporated when the substance is in a powdery form and not a slab as is the case in the matter.
Mr. Senanu also used the platform to correct what he said is being said that he secured bail for the accused person.

David Agyeman Agyin, the Police Anyalyst who did the initial test at the Police forensic laboratory, told the committee that on August 29, 2008 the substance was brought to them for testing and they took sample after it was weighed.

According to him, at the time it was brought to them the substance weighed 1,430 grammes.
He told the committee that the sample that they used for the test is still in their custody which they are ready to provide upon request, adding “we are positive of the work we did and we are sure the substance was cocaine”.

Under cross-examination, he told the committee that generally cocaine has a pungent smell whether in a powder form or any other form. “I don’t think this is the substance we worked on”, he insisted.

Earlier, Mr. Kofi Adjei-Tuadzrah, Head of the Police Narcotic Unit, who was re-called to be cross-examined on a report his unit wrote on the case on September 28 and another on October 3, told the committee that he had not yet received a response to the letters from his superiors.

He denied the assertion that the police knew the substance was going to prove negative for cocaine for which reason they were worried when the substance was left in the court’s custody overnight without seal.

“We were worried because the chain of custody had broken….I knew definitely something was going to happen,” he said and disagreed with counsel that the police were directly complicit in the swapping of the substance if any.

When asked by the committee whether it was part of the country’s criminal procedure code for the police to write reports on an exhibit tendered in evidence, he replied ‘no’ but said that is what they normally do.

Also when asked why the police appeared worried when after the substance was tendered in evidence and when their liability had ceased, Mr. Tuadzrah said because of previous experience, they decided to do it in a manner that would not create problems, besides the volume of the substance was much.

The committee yesterday completed the hearing of all the 10 witnesses it invited to give evidence.

The committee is charged to establish the role played by the trial judge and other court officials, including the registrar and the court clerk in the matter and other related matters.

It asked the public with relevant information on the matter to come with such information during its sitting today.

The four-member committee, formed by the Chief Justice, Mrs Justice Georgina Theodora Wood, followed an Accra Circuit Court ruling on December 13 which revealed that the substance which initially tested positive for cocaine, later turned into baking soda upon a re-test.

The development led to the discharge of Nana Ama Martins who was being tried for possessing the drug without lawful authority on Tuesday.

The committee chaired by a Court of Appeal judge, Justice Agnes Dordzie , has Justice Abdulla Iddrisu, a High Court judge, Mr Nii Boye Quartey, Deputy Director in charge of Human Resource of the Judicial Service and John Bannerman, Chief Registrar, as members.

Judge Faulted For Ordering Re-test

By Stephen Kwabena Effah
December 17,2011

The judge, Mr. Eric Kyei Baffour on September 28, ordered a re-test of the substance which had been admitted in evidence the previous day as cocaine exhibit, grounding his order on a Supreme Court case (Jaxon-Smith versus KLM- SCGLR 438).

However, Justice Agnes Dordzie who is chairing the four-member panel probing the circumstance that resulted in the cocaine turning into sodium bicarbonate, said the judge’s citing of the Supreme Court (SC) authority in the case was wrong.

This came up at the committee’s sitting yesterday when it sought to find out from the State Attorney who prosecuted the case, Stella Arhin, whether she checked out the SC citation by the judge to see its applicability in the instance case.

Ms Arhin, who testified as the fourth witness before the committee said she did not and could not give reasons why she did not do so.

Ms. Arhin, who gave an account of her role in the case which was tried by the Accra Circuit Court ONE said she had prepared a notice of appeal against the court’s ruling of December 13 which acquitted and discharged Nana Ama Martins from whose custody the substance was retrieved.

The State Attorney told the committee that she has applied for a copy of the Mr. Kyei Baffour’s ruling after which she would file the appeal. She however did not give details of the grounds of the appeal.

Giving an account on how the substance was tendered in evidence on September 27 and subsequent events, she told the committee that when the substance was tendered by Cpl. Thomas Ayekase, there was no objection by the defence counsel.

According to her, the substance which was in a sealed envelope was opened in court for inspection by the defence. It was left in the custody of the court with the seal broken when the case was adjourned at the instance of the defence.

However, on September 28, she said defence counsel, Kwabla Senanu at the tail end of his cross-examination of the Cpl. Ayekase, raised an objection that the substance that was admitted in evidence the previous day was not cocaine, and requested a re-test of the substance.

Ms. Arhin said Mr. Senanu argued that the Police forensic laboratory which tested the substance did not have the authority to test drugs and therefore doubted the result.

But she said she objected to Mr. Senanu’s application on the grounds that the substance tested positive for cocaine, and also that a number of narcotic cases had been tried based on results from the police laboratory.

Another reason for her objection, she said was that Mr. Senanu had the opportunity to raise the objection before the substance was tendered in evidence but failed to do so.

She said the court overruled her objection and ordered a re-test to be done by the Ghana Standards Board. Following that, she said a sample of the substance was taken in court into an envelope on which she signed together with Constable Joseph Owusu and the Deputy Registrar of the Court.

Ms. Arhin also told the committee she was displeased with the trial judge for devoting a page in his ruling to question her professional conduct during the trial, saying “I was very, very displeased about the part he wrote about me”

According to her she was surprised the trial judge left out the defence counsel who she alleged at a point in the trial, insinuated that she had been bribed to bring wrong witnesses in court to testify in the case.

Ms. Arhin said under cross-examination that she did not remind the trial court to order the destruction of the substance on September 27, because she forgot.

According to her it was after proceedings that day that the investigator in the case approached her on the issue and “I said counsel had not finished cross-examination and it could be the reason why the court didn’t order the destruction”

Asked whether it was not from the substance tendered in evidence on September 27 that a sample was taken on September 28 for a re-test, she said: “yes but no specific identification was done by the investigator but we believed it was what we tendered.”

She said the seal was broken so it was probable that anything could happen, adding “I cannot say if somebody tampered with the substance after it was kept in the court custody”.

She disagreed with counsel that a request she made to the court to hear the evidence of the GSB analyst who did the second test in-camera, was to satisfy somebody’s bidding.

Further, Mrs. Arhin told the committee that after the re-test result proved negative for cocaine, she applied to the court to call for another test in court but the judge rejected it on the basis that they had gone past that stage where field test should be done.

The Court Clerk, Daniel Nyatsidzi, who was the second witness to testify, said on September 27, the substance was brought to the court where Cpl. Ayekase tendered it in evidence.

According to him, after the substance was tendered in evidence, he took the substance together with other exhibits which were tendered in evidence to the trial judge’s chamber where it was kept under lock and key.

He said that on September 28, upon the request of the defence, the substance was brought to open court and before the exhibit was handed to Cpl. Ayekase to be cross-examined on, Ms. Arhin took the exhibit and examined it without raising any objection about it.

According to him, when Cpl. Ayekase was asked to sign the envelope in which the sample for re-test was put, he declined because at that time he had ceased to be the investigator in the case.

He said the investigator who took over from him, Constable Joseph Owusu then signed together with Ms.Arhin, Mr.Senanu and the accused person.

Mr. Nyatsidzi told the committee that he was the only one with exclusive entry to the metal safe in which the substance was placed overnight, saying: “I am the only one who has access…nobody broke into the cabinet. What they tendered on September 27 to the court is what I have kept till today.”

Under cross-examination, he said the safe is where all exhibits to the court are kept and that the chamber is accessible to only the judge, the court’s interpreter and himself.

He said there was nothing wrong with the cabinet on September 28, when he went into the judge’s chamber to collect the substance.

Further, he told the committee that when he was transferred to the Circuit Court ONE four years ago, he was not shown any exhibit or strong room where exhibits would be kept. He also said he was not given any training when he assumed the clerical position.

On his part, the Deputy Registrar, Seidu Yussif, who took the sample of the substance to the GSB for the re-test told the committee that the sample was taken in the presence of Ms. Arhin, Constable Owusu, Nana Ama Martins; all of who signed on the envelope that contained the sample.

He said they could not take the sample to the GSB on the September 28 because the court closed late and therefore could not get the order accompanying the sample.

In view of the situation, he said he agreed with Constable Owusu to take the substance to the GSB on September 29, and the sample was thus kept in a safe in his office until Spetember 29 when they went to the GSB in the company of another court staff who drove them to the GSB.

During crossexamintaion, he said the whole of Cocoa Affairs Court has no strong or exhibit room and this has been brought to the attention of the Judicial Service management.

He told the committee that he does not expect any clerk to inform him when exhibits are tendered in evidence but admitted that there is a book in which court clerks are expected to write a summary of the day’s work.

The Chief Registrar at the Cocoa Affairs Court, Frederick Tetteh, also gave evidence as the fourth witness. Hearing resumes on December 19.

The four-member committee, formed by the Chief Justice, Mrs Justice Georgina Theodora Wood, followed an Accra Circuit Court ruling on Tuesday which revealed that a substance which was initially tested as cocaine, later turned into baking soda upon a re-test.

This development led to the acquittal and discharge of Nana Ama Martins who was being tried for possessing the drug without lawful authority on Tuesday.

The committee chaired by a Court of Appeal Judge, Justice Agnes Dordzie , has Justice Abdulla Iddrisu, a High Court judge, Mr Nii Boye Quartey, Deputy Director in charge of Human Resource of the Judicial Service and John Bannerman, Chief Registrar, as members.

The committee is charged to establish the role played by the trial judge, Mr. Eric Kyei Barffour and other court officials, including the registrar and the court clerk in the matter and other related issues.

The STX Project Saga- Parties Tight-Lipped

By Stephen Kwabena Effah
December 16,2011

The two parties litigating over who should lead the execution of the STX Housing Project are tight-lipped on the progress of the proposed out of court settlement of the dispute between the Ghanaian and the Korean partners.

Although the Accra Commercial Court trying the case gave the parties up to Wednesday to firm up the terms of settlement, they declined to announce the progress in open court when proceedings resumed.

When counsel for the Korean partners, Sarfo Buabeng, was asked by the judge the extent of progress made with regards to the settlement, he replied: “We would prefer meeting you in chambers for that aspect.”

Although the judge, Mrs. Gertrude Torkornoo, initially refused to grant the request, she later rescinded her decision following an intervention by another lawyer, Kizito Beyuo, who announced himself as “intervener”.

The court thus called Mr.Buabeng, Mr. Beyuo, a representative of the Korean partners and Mr. B.K Asamoah, the man who initiated the action against the Korean Partners, into the judge’s chamber, and after about five minutes returned.

Efforts by anxious journalists to get information on the brief in-camera sitting proved futile as both parties were not ready to divulge it.

At the court’s last sitting on November 24, Mr. Buabeng informed the court that the terms of settlement had been forwarded to the Korean Partners in Seoul, but was yet to receive any communication from his clients in Korea.

According to him, the case was such an important issue that the Koreans representing his clients in Ghana had no mandate to give directives on the terms of settlement drawn up for the amicable resolution of the impasse.

In view of the circumstance, the court gave them the last opportunity to firm up the settlement, and warned that if the parties failed in the bid by December 14, it would give them the option to either move the application or withdraw it; otherwise the court will have no option than to strike it out.

G.K. Airports Company Limited, a company owned by B.K.Asamoah, which commenced the action to disengage the Korean partners from the execution of the project, on November 15, 2011, announced an out of court settlement, a copy of which they handed to the Korean partners to sign for it to be filed at the court registry.

The action, which was commenced on September 27 is against STX Engineering & Construction, STX Constriction Co. Ltd and eight other Koreans appointed by the latter to represent them on the former as directors.

Mr Asamoah claimed the Korean partners breached their obligations under the Joint Venture Agreement by woefully failing to provide all the technical, engineering and construction expertise required for the project, aside its failure to arrange for finances.

The applicant contended that the Korean partners on May 6, 2011 wrote a letter to terminate the Joint Venture Agreement of November 15, 2009 and the Heads of Agreement between the two partners which it duly accepted.

He averred that having accepted STX Construction Company Limited’s “unilateral decision” terminating the agreements, it has since ceased to be a partner of the STX Engineering and Construction Ghana Limited, which is to execute construction of 200,000 houses.

By the action of STX Construction, the applicant is contending that it has “no right of representation on STX E&C Ghana Limited’s board”, and that per the Korean partners breach, the applicant exercised its right as the sole shareholder of the STX E&C.

It claimed that the breach by the Korean partners’ completely prejudiced the success of the project in that it contravened its statutory obligation to make the appropriate investment by way of direct equity contribution as a partner to the project in terms of its obligation as a foreign investor.

The applicant therefore sought among other reliefs, a declaration that by terminating the Joint Venture Agreement and Heads of Agreement, the respondents have renounced their membership of STX E&C.

It is further seeking an order of injunction restraining STX Construction Co. Ltd as well as its seven directors from holding itself out and or purporting to act or discharge functions as shareholders of STX E&C.

Meanwhile, the Korean partners have opposed the applicant’s claims contending that STX Construction Limited still remained a member of the STX E&C an that all its appointees to the board of STX E&C had acted legally and lawfully at all material times.

According to the Korean partners, STX Construction Co. Ltd had fully paid for its 15,000 shares in STX E&C and remitted to Ghana a total of 1,009,964 dollars of which 15,819.21 dollars had been converted into cedis and credited to STX E&C account as its equity contribution.

Again, the respondents are claimed that STX Construction Co. Ltd had not executed any transfer of its shares, neither had the said shares been affected by any law or statute, adding there had not been any call on it by STX E&C to pay for the said shares subscribed nor had STX Construction Co. Ltd been liquidated.

The Korean partners further contended that the Joint Venture Agreement between STX E&C and STX Construction Co. Ltd were merely transitional and was to operate for only six months.

Coke-turned-baking powder- PROBE BEGINS

By Stephen Kwabena Effah
December 16, 2011

Vice President John Mahama has directed the Police Service to suspend its investigations into the cocaine-turned-baking powder saga.

He gave the directive after a meeting with the Chief Justice, Theodora Wood, the National Security Coordinator, Larry Gbevlo-Lartey, and the Chief of Staff, Henry Martey-Newman.

The Vice-President also charged the Bureau of National Investigation to institute criminal investigations into the case, whilst the Chief Justice conducts a fact-finding probe. The two investigations are supposed to run concurrently.

They have up to December 22, to present their reports.

Meanwhile, the four-member panel set up by the Chief Justice has begun work.

Three police officers have so far testified before the panel, insisting that the substance tendered in evidence in court was tested to be cocaine.

All the three officers gave evidence to the effect that the substance tendered in evidence by the police on September 27, 2011 was indeed cocaine as the seal of the police forensic laboratory embossed on the envelope remained intact when it was being tendered.

The three officers were Detective Cpl. Thomas Ayekese, Detective Constable Joseph Owusu, and the Head of the Police Narcotic Unit, Kofi Adjei-Tuadzrah.

The four-member committee, formed by the Chief Justice, Mrs Justice Georgina Theodora Wood, followed an Accra Circuit Court ruling on Tuesday which revealed that the substance valued at 44,000 dollars which was initially tested positive for cocaine, later turned into baking soda upon a re-test.

The development led to the discharge of Nana Ama Martins who was being tried for possessing the drug without lawful authority on Tuesday.

The committee, chaired by a Court of Appeal judge, Justice Agnes Dordzie , has Justice Abdulla Iddrisu, a High Court judge, Mr Nii Boye Quartey, Deputy Director in charge of Human Resource of the Judicial Service and John Bannerman, Chief Registrar, as members.

The committee is charged to establish the role played by the trial judge, Mr. Eric Kyei Barffour and other court officials including the registrar and the court clerk in the matter and other related matters.

In his evidence, Constable Owusu who took over investigations of the case in 2009 said he first came in contact with the exhibit on September 16, 2011 when it was given to him and two other armed officers by his commander to take to the Accra Circuit Court which was then trying the woman whose custody the substance was retrieved.

According to him, the substance was until it was tendered in evidence on September 28, 2011, being kept in a safe at the office of the Head of the Police Narcotic Unit and not the Police exhibit room.

He told the committee that he could not tell why the substance was kept in his commander’s office instead of the exhibit room, noting that three different commanders handled the substance during the three-year period that it was them.

He gave their names as DSP Thomas Cobbah, Chief Supt. Osarfo Agyemang and DSP Adjei-Tuadzrah.

According to constable Owusu, on September 6, 2011, they were unable to tender the substance so it was returned intact to the commander and on September 13, 2011, it was given to him and other armed officers to take to the court but were again not able to tender the substance as evidence.

Constable Owusu said on September 27, 2011 the substance was again taken to the court, adding that although the substance was tendered in evidence by the Cpl. Ayekese, he was not present in the courtroom in view of the fact that he was also to testify as a prosecution witness in that case.

He told the committee that on September 28, 2011, after the substance had been tendered in evidence, the defence team raised objection to the exhibit and prayed the court for a re-test since they argued it was not cocaine.

According to him, after the trial judge had upheld the request of the defence team, he was ordered by the court to accompany the Registrar of the Court to take a sample of the substance to the Ghana Standards Board.

Under cross-examination by counsel for the circuit court trial judge, Mr. Robert Kinsley Yeboah, he told the committee that the sample which was taken to the Ghana Standards Board (GSB) was taken at the time that the judge had retired to his chambers after work, adding “we didn’t go (to the GSB) the same day we took the sample.

Further, he said the Registrar after taking the sample told him they could not go to the GSB that day so he left the court premise as the Registrar took custody of the substance and the sample taken.

According to constable Owusu, he returned to the court premise on September 29, 2011 to meet the Registrar who went to the GSB with him together with one lady who drove them to the office of the GSP.

However, he said although he appended his signature to the envelope in which the Registrar placed the sample for the re-test, he could not tell whether it was the same taken in his presence by the Registrar the previous day.

Being cross-examined by the Registrar, Seidu Yussif, who is the Deputy Registrar at the Cocoa Affairs Court, constable Owusu admitted that though at the GSB, a prelimary test was conducted but a report was not issued to them.

When he took his turn, DSP Adjei-Tuadzrah confirmed that the substance was kept in a safe in his office and noted that the substance was kept with other cocaine exhibits in the safe in view of the value of the substance.

He explained that until a month ago, cocaine exhibits were kept in the safe in his office, and pointed out that though there was an exhibit room that was used for only Indian hemp exhibits which was in their custody.

He said the idea of keeping the substance and others in the safe was to “safeguard them”.

Being cross-examined by Mr.Yeboah, Mr. Adjei-Tuadzrah said per the police forensic lab report, he was satisfied that the substance was cocaine and that he did not open the substance to check its content because he was not authorized to do so.

Cpl. Ayekase who sent a sample of the substance to the police forensic laboratory for the first test told the committee that the substance was sealed in the presence of the accused persons, himself and the officers who arrested her, noting they all appended their signature on the envelope.

He said on August 29, 2008 when he sent the sample to the police laboratory, the envelope was opened a sample taken after which it was re-sealed for him to sign and handed over to the his Unit Commander for safekeeping.

He said in 2009, he was transferred from the Police Narcotic Unit to the Pokuase Police Station when he ceased to be the investigator in the case.

According to him, when he tendered in the substance as evidence and the police forensic report on the substance on September 27, 2011, there was no objection raised by the defence team though it was showed to them.

Before it was opened in court, he said the envelope was embossed with the security seal and after it had been shown to the parties in the court, it was handed over to the court and the case was adjourned to September 28, for him to be cross-examined.

Under cross-examination, he told the committee that he could not tell whether the substance tendered in evidence on September 27 was the same substance that was brought to court for a sample to be taken for the re-test by the GSB since it was left overnight it the court custody without any seal.

Hearing continues this morning and the State Attorney, Stella Arhin, who prosecuted the case is expected to take her turn to give evidence.

POLICE INDICTED...As Cocaine Turns Into Baking Soda

By Stephen Kwabena Effah
December 14, 2011

A total of 1,020 grammes of substances, tested as cocaine three years ago in Police Forensic Laboratory, have mysteriously turned into Sodium bicarbonate (baking soda), while in the custody of the police.

The new twist was noticed after a re-test of the substances this year by the Ghana by the Ghana Standards Authority (GSA). This resulted in the acquittal and discharge by an Accra Circuit Court yesterday, of a woman standing trial for possessing the substances.

The woman, Nana Ama Martins, was arrested in 2008 with the substances.

The court has consequently indicted the Police Administration and has ordered the Inspector-General of Police to institute a service enquiry to determine who might have tampered with the substance.

The re-test of the substance was at the request of the defence team on the grounds that what was retrieved from the accused was not cocaine, contrary to the result of the police test.

Although the prosecution objected to the request, the court, presided over by Mr. Eric Kyei Baffour said in the interest of justice and in accordance with an established principle by the Supreme Court, a re-test was necessary.

In the presence of the court registrar and the investigator, the GSA conducted three different tests on the substance, all of which proved negative for cocaine.

Upholding a submission of “no case” made by the defence, Mr. Kyei-Baffour held that evidence adduced by the four prosecution witnesses who testified at the close of its case showed that the accused person had custody of the substance.

However, he said: “Clearly, the evidence of the prosecution becomes so manifestly unreliable that it will be wrong for the court to invite the accused to open her defence as to whether the substance found on her was cocaine or has not.”

According to Mr Kyei-Baffour the prosecution’s failure to prove that the substance is cocaine has been a waste of the precious time of the court.

“If the substance the prosecution produced before the court was what it tested to be cocaine at the police forensic laboratory, how come that the same substance could suddenly become sodium bi-carbonate?” he asked.

The Judge recalled that David Agyapong Agyin, a government analyst who did the first test at the Police Forensic Laboratory three years ago, using the same method had told the court that if another test proved to be negative for cocaine, then it was not the substance he conducted the test on.

He questioned the professional conduct of the State Attorney, Stella Arhin, who prosecuted the case, especially when she urged the court to convict the accused person though the cocaine, based on which she was charged turned out to be sodium carbonate.

Mr. Kyei-Baffour wondered why the state attorney “was extremely troubled” when the court agreed to the request by defence for another test on the substance, adding at a point she retorted that the substance could have been changed in court.

He pointed out that a lawyer whether for the state or a private person is not a robot for his or her client, saying a lawyer’s allegiance is to a higher cause, that is justice and truth.

The prosecution’s case was that on August 22, 2008 the police had a tip-off that the occupants of a taxi cab in traffic at Roman Ridge were dealing in narcotics.

The police stopped the vehicle and arrested the occupants one of whom was the accused. The other occupants managed to escape.

At the police station, the accused was asked to empty the two bags she had on her and one of them, contained a slab which was suspected to be cocaine and she was handed over to the narcotic unit of the police.

Court Slams GHC 5,000 Cost Against Vodafone

By Stephen Kwabena Effah
December 10, 2011

The Accra Commercial Court has slapped a GH 5,000 cost against Vodafone Ghana for bringing “unmeritorious” application to stay proceedings in the case in which the government has been sued for offloading 70 percent of its shares in Ghana Telecom to Vodafone International.

According to the court presided over by Justice Mrs. Gertrude Torkornoo, the application filed by lawyers for Vodafone Ghana on December 6, was “without basis”, and consequently dismissed it.

It thus went ahead to give Vodafone up to December 16, to file its amended statement of defence, and December 22 for the plaintiffs, the Attorney General and Vodafone to file new issues of trial following the filing of an amended statement of case by the plaintiffs.

The action was initiated at the Commercial Court in October 2008 by Professor Agyemang Badu Akosa, Michael Kosi Dedey, Dr Nii Moi Thompson, Naa Kordai Assimeh, Ms Rhodaline Imoru Ayarna and Mr Kwame Jantuah, all members of the Convention People’s Party, in their capacity as citizens.

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 dollar was against the public interest and constituted an abuse of the discretionary powers of the government.

Vodafone Ghana filed the application to stay proceedings in the trial to enable it appeal against the court’s decision of November 1, to the effect that it would take material evidence aside the legal arguments.

In February 2009, the court differently constituted asked the parties in the to submit to it legal arguments for it to decide on the case, but the court which is now presided over by Mrs. Torkornoo ruled otherwise when lawyers for Vodafone drew her attention to the earlier order.

According to Mr. Festus Kayi, they were not satisfied with the decision of the court and thus filed a notice of appeal at the Court of Appeal to contest it.

Further, he argued that an aspect of the case is still pending before the Supreme Court and until that has been dealt with the lower court cannot proceed to hear the matter, saying “this court cannot hear the case until the constitutional questions have been addressed”.

The lower court differently constituted referred three cardinal constitutional questions to the Supreme Court on November 23, 2009 for interpretation but the Supreme Court in early last year declined to hear the case since it said it was premature.

The court held that the relevant materials needed to determine the three issues were not available, for which reason it sent the case back to the Commercial Court for those materials to be provided before going into the matter.

But Mr. Kayi argued yesterday that those relevant materials requested by the Supreme Court had since been submitted to the court, copies of which have been provided the plaintiffs. According to the court, it was yet to receive those documents.

“The Supreme Court now have enough materials to decide the questions….the matter is ripe to be before the Supreme Court,” he noted, and therefore urged the court to stay its proceedings.

Dismissing the application, the court held that pleadings in the case have not even been closed, in view of the amended statement of case filed by the plaintiffs. The case has since been adjourned to January 12.

According to the plaintiff, the decision of the government to transfer the assets, properties, 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.

Ghana Telecom Sale Case: Plaintiffs To Lead Evidence In Court

By Stephen Kwabena Effah
November 23, 2011

The six Ghanaians, who sued the government in 2008 over its sale of the 70 per cent shares in Ghana Telecom to Vodafone International, will from December 9 lead evidence, to establish their case at the Accra Commercial Court.

The six are seeking a declaration that the agreement entered into by the government in offloading its shares was not in accordance with due process of law and thus a nullity.

The action was initiated at the Commercial Court in October 2008 by Professor Agyemang Badu Akosa, Michael Kosi Dedey, Dr Nii Moi Thompson, Naa Kordai Assimeh, Ms Rhodaline Imoru Ayarna and Mr Kwame Jantuah, all members of the Convention People’s Party, in their capacity as citizens of Ghana.

At the court’s sitting yesterday, the presiding judge, Justice Gertrude Torkornoo, asked the plaintiffs to cause hearing notices to be served on the four entities subpoenaed to present some relevant documents on the case to the court.

The entities are Volta River Authority, the National Communication Authority, the Ecobank Development Co-operation and the Ministry of Communication

Until yesterday when the court granted a seven-day leave to the plaintiffs to file an amended writ of summons and statement of claim, all the initial processes preceding hearing had been concluded.

According to the plaintiffs, the amendment was prompted by new developments which had come to their attention, which they said was the10-year lease of radio towers and buildings in Takoradi by Vodafone to Eaton Towers of UK.

Meanwhile, the court has given the defendants; the Attorney General and Vodafone Ghana, up to November 25 to also file their statement of defence, in response to the yet to be filed amended statement of claim by the plaintiffs.

The case was thus adjourned to December 9.
The A-G was represented by State Attorney Grace Ewoo, while Mr. Festus Kayin represented Vodafone Ghana.

The plaintiffs are contending that the sale and purchase agreement entered into between the Government of Ghana, GT and Vodafone for the sale of 70 per cent of GT for 900 million dollars was against the public interest and constituted an abuse of the discretionary powers of the government.

According to the plaintiffs, 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 compensation 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 praying the court to 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.

They 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.