Justice Yaw Apau
The Supreme Court has ordered that part of the findings of the sole Commissioner of the Judgement Debt Commission must be expunged from the government’s White Paper.
The Court, by a unanimous decision, ruled that the findings of the Justice Yaw Apau Commission relating to the Alfred Agbesi Woyome and the Attorney General, as well as the Sky Consult Vrs Ghana Post cases, were unconstitutional.
The court held that the Justice Apau Commission’s report was in breach of Articles 125 (1) (3) 127 (1) of the constitution and amounted to judicial interference and a violation of the independence of the judiciary.
In the wake of the many judgement debt scandals that rocked the country in 2012, ex-president John Mahama constituted a Judgement Debt Commission to look into the many judgement scandals at the time.
Chaired by Justice Yaw Apau, the Sole Commission was inaugurated on October 8, 2012 and had the following as terms of reference;
“a. ascertain the causes of any inordinate payments made from public funds in satisfaction of judgement debts since the 1992 Constitution came into force; b. to ascertain the causes of any inordinate payments from public funds and financial losses arising from arbitration awards, negotiated settlements and akin processes since the 1992 Constitution came into force
“c. to make recommendations to the Government for ensuring that, as far as practicable 2 i. the instances where public funds are utilized to make payments in satisfaction of judgment debts and public debts arising from akin processes are limited or avoided; ii. Government does not incur undue financial losses when it does business with private persons or institutions.”
For more than two years, the Sole Commissioner looked into many high-profile judgement debt cases, including the infamous Woyome case, the Tsastu Tsikata, Akufo-Addo drill ship saga Sky Consult Vrs Ghana Post, all of which had caused the country millions of dollars in debts.
The Commissioner submitted its findings to the government in May 20, 2015 and pointed to some breaches in procedure and law by government and public officials, which led to causing financial loss to the state.
For instance the Woyome case, the Commission found: “Either through inadvertence or pure mischief through connivance, both the Chief State Attorney Samuel Nerquaye Tetteh, who was charged with the defence of the suit in the trial court, and the trial judge did not scrutinize the processes filed before them with judicious eyes. If the trial judge, particularly, had done so, he would not have granted the application for default judgment in the first place.”
In the Sky Consult Vrs Ghana Post case, the Commissioner found “Profits were shared when the accounts of the “IMT” business had not been audited and Sky Consult was also not made to pay withholding taxes on the monies paid to it as earned profit. The Ghana Revenue Authority (GRA) must therefore take Sky Consult to task for the payment of withholding tax on the monies paid to it as earned profit or revenue.”
Sky Consult, a private limited liability company, had entered into a contract with Ghana Post, a 100% state-owned company, in 2005 to do the business of Instant Money Transfer (IMT) and to share the profits with Ghana Post.
The government, upon receipt of the findings, issued a white paper on the report as mandated by the constitution, with President John Mahama later promoting the Commissioner from an Appeal Court Judge to the Supreme Court.
Even though Justice Apau was not part of the panel, his colleagues ruled that the findings by the Commission were wrong in law and a usurpation of the powers and independence of the Judiciary.
“His Excellency the president of the Republic by C.I. 79 of October, 2012 has no lawful authority to reopen, review and or declare any decision, order or judgement of any court of competent jurisdiction an error of law or nullity,” the judges ruled.
They therefore “directed the defendants to expunge from their records the said findings, recommendations and the government White paper thereon.”