Since the choicely portions of the Sole Commissioner’s report on judgment debt was leaked into the public domain, many a respectable legal brains have expressed varied view point on the attempt by the Commission to indict Nana Addo, a former Attorney General (AG) over a certain $19 million judgment debt paid to Societe Generale (SG).
Sampson Lardy Anyenini, a legal practitioner and a political talk show host touching on the leaked portions of the report hinted that Nana Addo could be barred from contesting the 2016 presidential election by any interested party based on Article 62 and 94 of the constitution.
But Professor S. K Asare, another lawyer has also issued a statement seeking to address or clarify issues as it relates to the consequences of adverse findings made by such Commissions.
In his article, he opined that the answer to the question of what is the legal effect of adverse findings of a Commission of inquiry on a person seeking elective office in Ghana assuming such adverse findings are not set aside on appeal depends on the type of adverse findings because Commissions can make all manner of adverse findings against people, ranging from the trivial to the consequential and specific to general, common sense will suggest that not all adverse findings will have the same effect.
He said, according to the Constitution, only specific adverse findings which are consequential in terms of holding elective office are that the Commission must specifically find a person (i) “to be incompetent to hold public office,” or (ii) “while being a public officer, acquired assets unlawfully or defrauded the State or misused or abused his office, or willfully acted in a manner prejudicial to the interest of the State.”
Thus, it is inaccurate to state that, “the Ghanaian law generally, is that a person against whom a Commission of Inquiry makes adverse findings is constitutionally disqualified to aspire to be President of Ghana.”
He said, considering the statement from Justice Apau (Judgment Debt Commissioner) that “So clearly, the failure of the Attorney-General to make any appearance in the London Court after dispensing with the services of ‘Bindman and Partners’ who were the external lawyers of GNPC did not do the country any good. It was that failure that led to the entry of the ex-parte judgment against GNPC. Again, it was that failure that made it possible for SG to demand more than the fourteen million dollars (US$14 million) that they had earlier on (before the entry of judgment) agreed to accept as final settlement of the suit. This Commission holds the view that the payment of US$19.5 million instead of the US$14 million earlier on agreed, constituted financial loss to the Corporation and Ghana” … but applying the general law to this finding, Anyenini raises the specter that Akufo Addo might be disqualified from running for President when in fact nothing in this finding, even accepted at face value, will disqualify Akufo Addo or anyone from any elective office.
He stated that for starters, Justice Apau’s contention that “it was as a result of this failure to bring to the attention of the London High Court the settlement attempts that led to the entry of judgment ex-parte in the sum of US$47 million against GNPC” is factually barren, legally incompetent and logically bankrupt.
“By Justice Apau’s own account, attempts were being made to settle the claim at all material times, initially by the GNPC and later by the Attorney-General (AG). Parties must bring a final settlement, not settlement attempts, to the notice of the court. Thus, it is wrong, as a matter of law, for Justice Apau to have made such a finding. To worsen matters, Justice Apau does not, as he is required to, support this finding with any statement from the judgment decree. In fact, there is no evidence that he sought or obtained the judgment decree. For if he had done so, the judgment decree would have indicated the basis for the default judgment, and saved him from making the embarrassing finding that assigns absence of notice of settlement attempts as the proximate cause of a default judgment.
In effect, the contention that it was the failure to bring this settlement attempt to the court’s notice that led to the entry of judgment in the sum of $47 million is speculative, at best, and puerile, in reality, because the ex-parte judgment was set aside, as most default judgments are, when the parties reached a settlement”, Prof. SK Asare narrated.
He stated that “Justice Apau noted in the report that he cannot question the AG’s decision to settle the litigated claim. He is essentially correct but incoherent when he acknowledges the AG’s decision to settle the litigated claim and his theory of the default judgment. That is, the very fact that the claim was settled undermines his theory of the ex parte default judgment. Moreover, as it turns out, he ends up not just questioning this decision but, worse, by reaching the preposterous conclusion that settling a claim of $47M for $19.5M is causing financial loss to the State.”
He also opined that “for reasons that are not indicated in the report, Justice Apau failed to examine the underlying speculative activities that triggered the cause of action. Yet, the analysis of these troubled transactions, which ultimately led to the cause of action and the ensuing settlement, represent the nation’s best hope of understanding this particular judgment debt and the lessons to be drawn thereof.
While the Justice was quick to find fault with the AG, he failed to credit the AG for dispensing with the service of Bindman, the UK legal firm that was representing GNPC. Nor does the Justice tell us how much had been paid to Bindman and how much the Republic saved from the dismissal. The bottom line is that the AG settled a $47 million claim for $19.5M. The default judgment entered by the Court is of no moment, as evidenced by the stark fact of the settled amount.”
As to the question of whether the findings can disqualify Nana Addo or anyone from running for office, assuming they are accepted at face value, he stated that the answer is absolutely no because the Commission does not make a specific finding of incompetence, assets acquisition, fraud, misuse/abuse of office, or willful action, as set out by the Constitution.
He said, “the Commission does not even tell us why the AG failed to make appearance on the day the ex parte judgment was given. It makes no attempt to communicate with anyone in the AG’s office or to even get the court decree. In fact, the finding does not even name a person. It names the Attorney General, who happens to be the nominal party in all suits in which the government is involved. Nana Addo, who was Attorney General, at the time, was not even invited to the Commission. Nor does the commission give any evidence of the extent of his involvement or knowledge in the events leading to the ex parte judgment, which, as has been explained, had little legal significance. To hold a particular Attorney General, here Nana Addo, personally accountable for any lapse that occurs on any suit in which he is named a nominal party is to abandon logical and legal reasoning.”
Such a general finding is not the type of specific finding that the Constitution contemplates will disqualify people from holding elective office and the threshold for disqualification is high and rightly so!, he added.
Source: New Crusading Guide, Peace FM
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