$28.5m judgement debt saga: Court to rule on April 9

BY: Enoch Darfah Frimpong

The Attorney-General and Minister of Justice, Mrs Marietta Brew-Oppong Appiah, who was in court today to battle the claim is challenging the $28.5million judgement debt that has been awarded against the state on grounds that proceedings conducted by Mrs Justice Elizabeth Ankumah between September 30, 2011 and December 20, 2011 based on amended estimates filed by the plaintiff were null and void.

Arguing before the same judge who granted the estimates provided by the plaintiff, a Principal State Attorney, Mrs Sylvia Adusu, prayed the court to set aside its proceedings and ruling because the court was “enticed” by the plaintiff with its submissions.

She informed the court that it was against the rules of procedure for the court to go into another trial when another High Court had decided on the plaintiff’s case, adding that “nothing can stand on nothing. All proceedings and rulings after Mrs Justice Inkumsah-Abban are null and void.”

Mr Eshun’s opposition

However, counsel for the plaintiff, Mr George Eshun, protested against the use of the word “entice” and argued that his client was entitled to the claim because its factory was for the past 30 years run by the state and proceeds from it had been put into the Consolidated Fund.

Mr Eshun also argued that the court acted within its jurisdiction, gave valid orders and for that reason the state’s intervention should not be entertained, adding the motion to set aside the judgement lacked merit and only calculated to waste the court’s time and unduly delay his client from enjoying the fruit of the judgement.

Contempt case against Governor of the Bank of Ghana

Meanwhile, another High Court, presided over by Mr Justice Godwin Gabor, adjourned its contempt ruling brought by the plaintiff against the acting Governor of the Bank, Dr. H.K. Wampah, for refusing to pay the $28.5 million to Sweater and Socks.

The court also granted the Governor, who was in court, permission to absent himself from court, until he is notified on a new date for ruling on the contempt application.

Counsel for the Governor, Mr Samuel Codjoe, had prayed the court to adjourn proceedings sine die to enable the state to pursue its motion to set aside the orders upon which his client was being cited for contempt.

Consequently, the court suspended its ruling and fixed March 27, 2013 to consider new issues brought by the Attorney General.

Background to the case

The plaintiff, Sweater and Socks, a manufacturing company, dragged the Attorney-General and seven occupants of its factory which was confiscated by the state to court on June 21, 1994.

The other defendants in the case are the National Industrial Company, the African Bags Company Limited, Madam Sophia’s Company, Poly Products Limited, Fay International Limited and United Waters Limited and Golden Tower Limited, all tenants of the plaintiff’s property.

It requested the court to declare that the true legal position now was that Sweaters and Socks had not been confiscated and was, therefore, entitled to carry out its normal business operations.

The company also sought an order for the recovery of possession of the factory premises and all the machinery and or equipment thereof from the hold of the National Industrial Company.

On April 8, 2003, the High Court, presided over by Mrs Justice Inkumsah-Abban, gave judgement in favour of the plaintiff for all the reliefs claimed.

The court held that the plaintiff company was entitled to all its reliefs, as endorsed, and in 2010, the plaintiff obtained leave of the court to recover possession of the factory premises and duly recovered possession.

Filing of Estimates

However, after the plaintiff had recovered possession of its property, Mrs Justice Ankumah ordered the state to account for the factory but the state declined to do so and as a result the plaintiff filed estimates at the High Court dated May 19, 2011 and stated that in all, there were six warehouses and eight offices within the factory premises.

The estimates, marked as Exhibit AG 5 and titled “Estimates of Cost of Machinery and Running of Sweaters and Socks Factory” stated that the rent that the warehouses and offices were to attract per annum was $3,000 and for that reason the total rent for 30 years would be $ 9 million.

“Running of machinery: The sweaters and socks factory was commissioned in 1966 and started same year until it was seized in 1979,” the estimates continued, and said there were a total of 748 workers at the factory when it was seized by the AFRC.

The estimates also included cost of machine, garment sewing machines, workshops, offices and office equipment, profits it made while supplying garments to the police depot and the army; productions and many others which all totaled, $28,595,600.

According to the plaintiff, the money was converted into Ghana cedis at the rate of GH¢1.50.

Mrs Ankumah’s Ruling dated July 27, 2011

“By court, the plaintiff was not under any obligation to file the estimates. The order was directed at the first defendant (Attorney-General) to file but they refused.

“All efforts to compel the first defendant to file the estimates proved futile. This was as far back as February 2011, the plaintiff took it upon itself and filed the estimates.

“On July 21, 2011, the defendant agreed to file the estimates by today. Today too, the defendant has refused or failed to file the estimates.

“The court has no other option but to make do with what has been filed by the plaintiffs. The court, hereby, orders that the parties work with the amended estimates filed by the plaintiff on May 27, 2011 and thereafter file terms of settlement.”

After taking evidence from parties in the case, the court on May 16, 2012, ruled that, “in the light of no counter realistic estimates, the estimates filed by the plaintiff which has stood the test of cross examination is hereby declared to be the true figures arrived at after accounts. No order as to cost.”

Garnishee order

After battling its case for several years, the plaintiff consequently obtained a garnishee order nisi and garnishee order absolute on August 15, 2012 and September 12, 2012, respectively, ordering the BoG to pay the plaintiff the sum of US$28,595,600.

Following the grant of the reliefs sought by the plaintiff and subsequent orders of the court, and the failure of the BoG to pay the money, the plaintiff instituted the contempt proceedings against Dr. Wampah.

The Attorney-General’s intervention

But the state is arguing that the garnishee orders were borne out of void procedures and orders and for that reason they were “null and void and of no effect and should be set aside”.

“Furthermore, the plaintiff, in its writ of summons and statement of claim, never made a claim for recovery of any sum of money or for damages, whether general or special,” the state has argued.

It also argued that the judgment of Justice Inkumsah-Abban (Exhibit AG3) never made any orders for the recovery of money by the plaintiff from the 1st and 2nd defendants (AG and National Industrial Company) and that assuming without admitting that the ruling (Exhibit AG8) of Justice Ankumah  was valid, the said ruling never ordered the payment of any money.

In a motion challenging the plaintiff, the Attorney-General’s Department is praying the High Court to set aside as void orders and proceedings of the High Court.

Consequently, the state is praying the High Court to set aside an amended estimate of costs of machinery and running of Sweaters and Socks factory filed by the plaintiff on May 27, 2011 as well as set aside the order of Justice Ankumah dated July 27, 2011 accepting the amended estimates.

The AG is further praying the judge to set aside her subsequent ruling dated May 16, 2012 after undergoing trial proceedings /hearing.

The court is also expected to set aside the garnishee order nisi dated August 15, 2012 which was granted by Justice S. H. Ocran and another garnishee order absolute dated September 12, 2012 which was granted by Justice Ocran.

One of the reliefs granted by the judgement of Justice Abban was for the defendants to provide “comprehensive account of all use and/ or transactions carried out by the 2nd defendant on the premises of the factory floor and or use of any equipment by same.

Story by Mabel Aku Baneseh

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