A 20-year review of judgment debt payments in Ghana (IX)
Those who forget history are doomed to repeat its mistakes. The recent judgment debt cases have raised alarm, especially at the amounts at which the country seems to be hemorrhaging.
Every country at some point will incur a modicum of judgment debts, an experience from which it is hoped that such a country will learn pertinent lessons.
Not so with Ghana. It appears we as a nation are not heeding the very harsh lessons or are simply impervious to the pain of the loss. Or worse, a prospect which does not bear thinking that all of this is orchestrated for gain.
Surely that cannot be the case. And yet, law report after report shows that Sisyphus may indeed inhabit the Attorney General Office.
Sadly, a cursory review of the law reports reveals a range of issues from “feigned” ineptitude to mischief and then to fraud. Truthfully the matter is endemic and a stain on the conscience of the country.
Reform will require leadership and a significant attitudinal change if the nation is to benefit from any of the recommendations given.
Below are a few cases that illustrate the malaise
At a very fundamental level, what was always missing from the cases was clear.
The basic three-step process of having:
1. Controls and processes with which to address all matters;
2. Accountability in respect of who it is who will handle the case and be responsible should anything go wrong. A point of contact person;
3. Consequence management for failing to adhere to the process and allowing significant cost against the Government.
It appears that at every given point, one or more of the steps listed above are either ignored or did not operate as they should.
The Delta Foods case
The Ministry of Agriculture entered into the contract and it seems that it did so without confirming that payment would be made by the Ministry of Finance.
Perhaps, payment should have been arranged and made when the contract was executed.
The Government’s side was in disarray in terms of who was responsible for addressing the ensuing breach of contract.
The Solicitor General’s office and, by extension, the Attorney General’s office failed in communication, or it seems woke up too late to take any proper action on the matter.
Having accepted liability, the Government reneged on its undertaking and proceeded to seek to quash the earlier consent.
The question is, what advice did the Government obtain before going to Court on the matter, seeing as the action in the Supreme Court was dismissed.
Notwithstanding its loss in the Supreme Court, Delta Foods had to bring an action in the US Courts to enforce payment.
The Government did not exercise good faith in its dealings on the matter, especially as it had agreed to a settlement, then changed its mind seeking to rely on a technicality.
Clearly, there are lessons to be learned by the Government in its approach and process.
One questions whether the Ministry of Agriculture should have sought the appropriate approvals for payment beforehand.
The Government's posture suggests that it did not seek legal advice or did so at a very late stage of the case.
The steps below would have gone a long way to ameliorate the mistakes made by the Government.
. Seeking consent for the purchase.
. Ensuring payment was made on time.
. Requesting a report on the matter to ensure all sides had clarity.
. Seeking legal advice of its options at every stage of the transaction and during the action.
. Having consented to a settlement, making sure it honoured its undertaking with the company.
. Not waiting for the Company to enforce judgment outside of the country.
. Following the laid down "legal" process assuming there is one- to protect the government's purse.