This was because “one of the suits was initiated by the Government of Ghana (GoG) against Mr. Yakubu Kasule and his company. The subject of that suit was that Gbewaa Civil Engineering Ltd had obtained payment for spare parts supplied to the Government of Ghana by KOLON (UK) LTD based on misrepresentations made by the defendant company and that the defendant company was not entitled to the said payments. The determination of that case was scuttled by the settlement.”
The report further stated that “her (Betty Mould Iddrissu) contention that all the suits had spanned a period of fifteen (15) years was not correct.”
This, according to the commission, was because “all the cases mounted by Gbewaa Civil Engineering Ltd and its Managing Director Mr. Yakubu Adam Kasule against the Attorney-General & Others, were filed in 2010 as suggested by their suit numbers. It was therefore not correct, as the then Attorney-General stated that, the suits had spanned a period of fifteen (15) years.”
The Commission also insisted that the settlement brokered by Betty Mould-Iddrisu, “notwithstanding the good intentions she might have had at the time she took over as the Attorney-General of Ghana, did not follow due process”.
And exonerated Mr. Martin Amidu insisting he “did not therefore err when he requested for answers from the Solicitor-General on the purported settlement before going ahead to advise the Minister of Finance to pay the sum agreed on at the settlement table.”
The report further affirmed former attorney general Martin Amidu’s decision to contend an order of settlement issued by his predecessor Betty Mould Iddrissu saying that “the State had appealed against the acquittal of Mr. Yakubu Kasule on the basis of the Nolle Prosequi (NP) entered by the Attorney-General against his prosecution with the other accused persons. The entry of the NP did not mean that the State had curtailed the prosecution of Mr. Yakubu Kasule”. To the commission the trial Court, therefore, could only have discharged him but not to acquit”. Since what was meant by his acquittal was that the Attorney-General could not re-arraign Mr. Yakubu Kasule before court on the same charges.
The commission further accused former Attoney General and now minister of defense Dr. Benjamin Kumbour of seeking clearance for the payment of the said amounts to the plaintiff even when he had dragged the matter to court for stay of execution of an earlier order.
This to them is because though “(Dr.) Benjamin Kumbuor, did appeal against the decision of S. K. A. Asiedu, J. Notwithstanding the pendency of the appeal, the new A-G went ahead to accept the amounts entered in the Certificate of Judgment by Mr. Yakubu Adam Kasule as monies owed by the State to Gbewaa Engineering Ltd and its Managing Director”.
This is regardless of the fact that Dr. Kumbour justified his actions by stating that “he did that as a necessity to release the hold on vital GoG accounts.”
The commission further questioned the figures that Dr. Kumbour ordered to be paid as settlement debt agreed on by the former Attorney-General Betty Mould-Iddrisu when Dr. Kunbuor took over as Attorney-General from Mr. Martin Amidu, granted the Executive had agreed to make good the judgment of S.K.A. Asiedu, J.
“In the settlement brokered by Mrs. Betty Mould-Iddrisu, the sums agreed on to be paid to Mr. Kasule and his lawyer were; US$5, 000,000.00 and GHc1, 000,000.00 respectively. Mr. Kasule went to court to claim these sums with interest at a time when the new Attorney-General Hon. Mr. Martin Amidu was questioning the legal basis of the said settlement as the substantive Attorney-General. The court, presided over by S.K.A. Asiedu, J, granted Mr. Kasule’s claim and awarded him damages of GHc150, 000.00 for breach of contract and costs of GHc35, 000.00.”
And further stated that “in the second alleged settlement by Dr. Kunbuor, these figures jumped to US$6, 272,514.41 and GHc1, 630,380.04 respectively. The excess alone for the dollar amount is US$1, 272,514.41 (which is more than twenty-five percent increment) and that for the cedi is GHc630, 380.04 (which is over sixty-three percent increment). Could the additions be interest only? If yes, then how were the interests calculated? What rates were used to calculate both the cedi and the dollar interest?”
To them “Since what was agreed on as the final amount to be paid to plaintiff/judgment-creditor at the settlement with Mrs. Betty Mould-Iddrisu had no interest component attached to it, any interest chargeable that the plaintiffs/j-creditors could have asked for or demanded should have been based on the provisions of C.I. 52 of 2005, particularly Rule 1 (1) and in respect of the Post-Judgment Interest, Rule 1 (2). This should have been the prevailing commercial lending rate calculated on a simple interest basis.”
The commission believes that Dr. Kunbour should have still pursued the case regardless of the garnishee order from the plaintiffs since to them “The fact that Mr. Yakubu Kasule had obtained a garnishee order against the State was not a valid ground to abandon the appeal”.
- The commission is of the view that the A-G should have proceeded further to the Court of Appeal for a Post-Mortem Examination to be conducted on that judgment. It is, however, regrettable that the Executive was convinced or cajoled to succumb to the pressures of Mr. Yakubu Adam Kasule on the false assumption that with the garnishee order absolute decreed by the trial Court, everything was lost.
- The Commission recommends strongly that the A-G should always take pains to dissect cases against the State properly and fight to the end instead of easily throwing in the towel with the least pressure when the fight could be won at the end of the last round.
- It further heaped praises Martin saying that he has been vilified for being just. “He has suffered several media bashing propelled by some faceless people, for pursuing a just course as a patriotic citizen of Ghana and a good one of course. This Commission is amazed that he remains unfazed by such wrong attacks. The Commission accordingly accords him the enviable esteem of a Ghanaian who loves his country more than himself”.
The 1st Plaintiff, Gbewaa Civil Engineering Company, which is a limited liability company with the 2nd Plaintiff as its Managing Director, took a writ of summons against the Attorney-General claiming the following reliefs:
- An order to compel the defendant and the Ministry of Finance and Economic Planning forthwith to pay plaintiffs an amount of; (i) Five Million United States Dollars (US$5m), (ii) One Million Ghana cedis (GHc1m)
- Interest on the said amounts from the 29th day of October, 2010 till the date of final payment
- General damages
The defendant contested the matter and filed a counter-claim as follows:
- A declaration that the settlement agreement reached with the 1st plaintiff was void for being contrary to public policy, was entered into under mistaken apprehension of facts; lacked the relevant consent, and is consequently unenforceable,
- An order setting aside the purported settlement agreement between the 1st plaintiff and the defendant on grounds of public policy, mistake and for lack of consent of the other defendants to the several actions between plaintiffs and defendant.
On the 1st day of June 2012, the High Court, Accra, coram S.K.A. Asiedu, J, entered judgment in favour of the plaintiffs on all the reliefs. The Court awarded plaintiffs general damages of GHc150, 000.00 for breach of contract and a further GHc35, 000.00 as costs.