THIS WILL BE A LONG READ SO I SUGGEST YOU START ONLY WHEN YOU HAVE THE TIME BUT IT IS WORTH THE READ; YOU HAVE MY WORD!
There are a lot of things flying all around and above us about a man whose name has over the past few months become a noun, a verb, an adjective and any other literary device you may want to attribute it to. I had frankly never heard the name Woyome until the Chronicle blew the lid over some gargantuan amount (with all due respect and the succinct permission of a certain Martin Amidu) to the whole nation. All kinds of people, most of whom have absolutely no background in law nor the financial background to investigate or the journalism skill to piece together all of the numbers and laws for us all to understand, have being on air, on TV, on social media all seeking to exonerate government or make government look like a bunch of criminals out to dupe Ghana.
Efo Dela, AKA Dela Cofie, the hitherto face of FONKAR and a friend of mine on Facebook posed the question below to ace lawyer Ace Ankomah (AKA Kojo Anan Ankomah) on his Facebook page (I have done a bit of grammatical edits but the contents remain same). The question was;
My good friend Kojo Anan Ankomah, what does the constitution say about payment of judgment debts? Is it prudent for a government to ignore a court ruling? What are the consequences for such an action? I’m aware of Busia’s “No Court” declaration and President Kufuor’s refusal to comply with the court order to re-instate Hodare Okai who was illegally dismissed from the public service but are these cases credible precedence for us all to follow? Why are we trying to paint the picture as if money was just doled out to an individual for no cause? Did the court order for payment to be made to Alfred Woyome or not? If yes, why not focus the discussion on the judiciary rather than the executive? Where does the complicity of the President come in? I just don’t get it!!!
With the kind permission of these gentlemen, I have pieced together Ace Ankomah’s response which I think simplifies the mis/understanding behind Woyome-gate. Here we go;
Around 2005, the government engaged with an Austrian company called Vamed to undertake some construction works in Ghana. But it turned out that they were really talking at cross purposes. While the government was talking about building stadia, Vamed was only interested in building hospitals. Vamed lost interest in the deal and therefore purported to assign its “rights and obligations” to another company called Waterville. Woyome claims that he led a consortium of Vamed, Waterville and M. Power Pak to win a bid to construct 5 new stadia and rehabilitate 3. However note the following: 1. Vamed left the scene, 2. the actual contract was between Ghana and Waterville alone, no Woyome, no M. Power Pak. 3. The contract I have seen was limited to the rehabilitation of Accra, Kumasi and El-Wak stadia, nothing about building 5 new stadia.
Let’s pause and do a little law here. Section 20 of the State Property and Contracts Act limits the “power to contract” on behalf of the state to the relevant sector minister or a person duly authorized by him. Thus unless a person can produce any such contract, the person has absolutely no contractual relationship with the state. There is nothing to enforce if you don’t have a contract. You might have heard Woyome admit many times on air that he did not have a contract with the government. That is true. But we will return to this later.
The contact with Waterville was signed on behalf of the state by Osafo Maafo and witnessed by a Principal State Attorney, and Agyeman-Manu and witnessed by the Legal Director at the MoF. Under that contract, Waterville was to procure funds for the rehabilitation projects. Subsequently, Agyeman-Manu wrote a letter of introduction for Waterville, Woyome and one other to 3 banks, but stated clearly that there was no power in them to enter into any contract and that if they agreed on something; the term sheet should be brought to Ghana for approval. Why Woyome? Clearly, he was a part of this deal, but officially as originally the local agent of Vamed, and now, almost by default, the agent of Waterville. But the letter was clear that none of the persons mentioned in it had the power to enter into any contract. Note that it is this letter that the AG subsequently discovered and rushed to court to say that on the strength of this letter, she made a “mistake” when she thought and argued that we had a contract with Woyome. But I will return to this later.
Notwithstanding the above, Woyome claims in his statement of claim that he “arranged” €1b with a bank, and that he had an agreement with the state that he would be paid 2% of “the project cost”. Once again he is unable to produce a contract under which he was to be paid any such monies. Note that he says he “arranged” the funds. But the introduction letter was emphatic that whatever they did was not binding on the state until the state had directly contracted with the bank. In any event, according to Woyome, this amount was to cover the construction of 5 new stadia, rehabilitation of 3 stadia, the construction of 6 hospitals, a cobalt plant and a tissue plant.
Please let’s go back. The only contract in existence was for the rehabilitation of 3 existing stadia. Even if we were to assume that Woyome had the power to “arrange” funding for that contract (which is denied), who gave him the power to extend that to cover all the other projects and then claim a 2% fee for all of that. If you send me to go and hire a taxi for you for a fee, can I hire a taxi, a trotro, a yutong bus and a bicycle and say you should pay me a fee covering all of that?
As things turned out, Waterville run into difficulties in raising funds for the stadium rehabilitation, and time was running out. So the government terminated the contract. Waterville wrote to accept the termination and made a claim for a specific sum. The government disagreed and asked the project consultant to do the relevant measurements of work done, materials on site, and already purchased but yet to be delivered materials. This was done and the Waterville was paid through its local subcontractors, Michelleti and Consar. It is obvious that Waterville was not happy with how much it was paid, but this was certified by the project consultant.
Then there was a change in power. Waterville then surfaced again to make claims, way in excess of even what they had originally made in their letter to the previous government when it wrote to accept the termination. Somehow, Woyome heard about this and wrote an angry letter saying that Waterville was lying and that in his view, Waterville was owed about €5m and he Woyome was owed €6m. This brought a quick reaction from Waterville’s lawyers, who reminded the AG that there was no contract with Woyome, and stated that Waterville had already paid Woyome off for his work and services and signed a termination agreement with him. I have seen the termination agreement. I will look for it and post it on my page.
Soon after this, Waterville’s lawyers were fired, and Waterville and Woyome became one. Waterville then put in a claim for construction and financial engineering of €32m. We are told that this went for “arbitration” and that we were made to pay Waterville some huge monies. Government guys have said it was €25m. Arbitration? Where? Who was the arbitrator? How was he appointed? Where is the Notice of Arbitration? Under the contract it was supposed to be under ICSID rules and held in London. Where are the pleadings? Where are the records of proceedings of the hearing? Where is the award? Woyome however gives the game away in his pleadings when he says that it was rather an “interim agreement” between Waterville and the government and that we paid €21.5m. But then he says that that payment only covered construction and not his financial engineering.
Remember that Waterville had accepted the termination, in writing, and had been paid, leaving a rather small claim that we were refusing to pay because the projects consultant did not certify it. Remember that Woyome had claimed, on whatever basis that we did not owe Waterville more than €6m. But we ended up paying over €20m to Waterville.
Back to the story. According to Woyome, he negotiated with the AG who agreed that he was owed the cedi equivalent of €22m, i.e. GH41m, which is 2% of the €1b he allegedly “arranged”. Note, the government never got this money. The AG then wrote to the MoF to pay Woyome. On 6th April 2011, the MoF approved the payment and asked the Accountant-General to pay. On 7th April, the Accountant-general issued a ‘Bank transfer advice’ to the Bank of Ghana. Then the plot hit a snag. Apparently someone in Bank of Ghana asked to see a contract. THERE WAS NONE. 12 days later, Woyome sued to say that he had waited too long for payment!
Things began to get bizarre. According to Woyome, he entered into negotiations with the AG who agreed that we owed him the cedi equivalent of €22m i.e. GH41m being 2% of the €1b Woyome allegedly “arranged”. Dela, how was this possible? Where did they conjure this up from? Remember that the AG now says that this was a ‘mistake’ and that she now knows that we did not have a contract with Woyome. But she wrote to MoF to “recommend” or “authorize” payment to Woyome. These are Woyome’s words. One should ask, where was the supporting documentation? Strangely, on 6th April, the MoF wrote to the Accountant-General to pay. On the very next day the Accountant-General issued a ‘bank transfer advice’ to the Bank of Ghana. This deal might have slipped through at that stage but for the apparent vigilance of someone at Bank of Ghana who demanded a contract. THERE WAS NONE! There was therefore the need to produce a document. What better than an unopposed judgment?
That is why Woyome sued within 12 days of the ‘bank transfer advice’, claiming that he was tired of waiting. The AG was served on 21 April and entered appearance on 23 April. Remarkable. Let’s do a little civil procedure class here. When you are served with a writ and statement of claim, you have 8 days within which to enter appearance and 22 days to file a statement of defence. That meant that our defence was not due until 13 May. If you do not file a defence, the other party is entitled to apply for ‘judgment in default of defence’. Simply, when your claim is for a debt, all that the party has to show is that you have been served and you have failed to file a defence. Then the judge will grant the judgment. Period. The judge is not required to inquire whether the case is true or genuine. Once you are served, you are the one to come to court and say that the case is stupid. If you fail, refuse, or neglect to do so, the court will not do that for you, whether you are the government or a private person.
But on 4th May, Woyome suddenly changed his lawyers who filed an amendment to his writ. More civil procedure. You are not allowed to amend your writ alone. If you amend your writ without amending your statement of claim, the court will set the amendment aside, especially where the new writ conflicts with the statement of claim. In this case, Woyome amended to claim €44m and failed to amend the statement of claim to explain how he came by this figure. Remember that he had claimed that he was entitled to 2% of €1b, which was €22m i.e. GH41m. He amends to increase his claim to 4% and the AG says nothing!!
I have not said that the president is complicity. Indeed my posts have said exactly that. I have said that unfortunately, if he knew, wahala, and if he didn’t know, wahala. But let’s follow the story.
It is a tad murkier here. The records show that the AG was served with this amendment on 4th May, the very day it was filed. However the bank stamp on the docket copy of the amended writ, which indicates the date the filing fee was paid, is dated 7 May! Further the amended writ, although it bears the name of Woyome’s new lawyers, does not have the lawyer’s signature or stamp. And do you remember that by this time, Woyome and Waterville are best friends? Well, Waterville is owned by Taricone of Trasacco. He also owns Micheletti. Woyome’s new lawyers are Taricone’s long standing lawyers!
But over and above all of that, our AG did NOTHING about this amendment. Even if were to admit this obviously flawed amendment as proper, the rule is that the filing of the amendment automatically extends the time for filing your next process by 14 days from the day you were served with the amendment. This means that worst case scenario, we had until 18th May to file a defence. But, curiously Woyome amended again! This time on 6th May to expand his claim for interest on the new amount claimed. Same problem with amending the writ without the statement of claim. What is worse, the amendment is also in breach of the rule that you can only amend once as of right. Any other or subsequent amendment requires the leave of the court before it is made or filed. No leave was obtained. The 2nd amendment was therefore invalid. The AG was served on 7th May. SHE DID NOTHING. But even if we admitted this wrong procedure as right, that extended the time for filing a defence to 21st May. And, there was no way that amendment could stand because essentially you had a statement of claim that asked for GH41m and provided grounds for it, and a new writ that asked for €44m with absolutely no explanation. And our AG did nothing about the fact that the court would have to resolve the contradiction before we filed anything. She did NOTHING!
So, although we now had up to 21st May to file a defence, even if we did not want to challenge the obviously invalid amendments, Woyome filed for default judgment 14th May. The time had not run. Our AG did nothing, although she was served. So on 24th May the court granted the default judgment. By 28th May, the AG had woken up and had sprung into action, writing a strongly worded letter to the MoF to demand payment for Woyome. She now says she was working under a mistake. Do you believe her?
This letter was copied to the chief of staff at the presidency. So we are entitled to ask what the President knew and when he knew it. In the letter, she ‘blasts’ the Ministry of Finance for not paying earlier as she had advised before Woyome sued. She said as a result Woyome had obtained a judgment for GH105, which was the cedi equivalent of the €44m plus interest and costs of GH25,000 awarded by the court. She said that she had managed to negotiate again with Woyome and his lawyers and they had accepted to take the Gh41m, plus GH9m as interest and the costs of GH25,000 a total of Gh51m. But according the Auditor General’s 2010 Report, we paid Woyome the GH41 on 4th June 2010, in record time!
Having gotten the MoF to agree to pay, on 3rd June, the AG entered into a document styled “Terms of Settlement” with Woyome, reciting the history of the case in court, including the invalid amendments (without any objections) and stating that we had agreed to pay the GH51m in 3 installments of GH17m each. If this is the case, why on earth did we pay GH41m to Woyome the very next day, as the Auditor-General says?
Seven days after the Auditor-General claim we paid Woyome GH41m, the AG’s Department has a Damascus moment. They filed an application to the court to set aside the Terms of Settlement, saying that they had now seen Agyeman-Manu’s letter, which showed that we made a mistake when we didn’t file a defence, thinking that we didn’t have a defence. The application was signed by a Chief State Attorney, who also deposed to the affidavit in support. It was this same guy who was the Principal State Attorney who witnessed Osafo-Maafo’s signing of the Waterville Agreement. So at least he had known all the time that the agreement was with Waterville and not Woyome. Yet he had also witnessed the AG’s signature on the Terms of Settlement that agreed to pay Woyome GH51m! And, what is even more criminal, the application did not state that they had paid Woyome the Gh41m, as we now know from the Auditor-General’s Report, to the extent that that report is true.
The begging question is whether the president knew about this payment. At least we know that the AG’s blasting PAY WOYOME letter went to the Presidency. According to the opposition, the MoF also notified the Presidency of the pending payment. But to be fair, I have not seen any documents to back the opposition’s claims.
Back to the story. Woyome opposed the application on numerous grounds. The one that sticks with me is that on the strength of a letter from the MoF dated 3rd June (I haven’t seen this, but I reckon this is what the opposition is referring to), he had gone to borrow GH4m from NDK. But if he had received GH41m, why would he go and borrow? And why didn’t the AG’s rep in court inform the court of the payment? So, either the Auditor-General’s Report is untrue or both Woyome and the AG misled the court. The court dismissed the application, and rightly so. It was riddled with substantive and procedural errors. The judge advised us that our best bet to set aside the Terms of settlement was by issuing another writ and not by a motion. We took a cue and so filed a fresh writ on the grounds that we made a mistake! On the back of the fresh writ, we applied back to the court to stay the execution of any payments to that the fresh case commenced by the fresh writ is determined. Once again, neither we nor Woyome disclosed to the court that we had paid GH41m. The judge reasoned that since we had agreed to pay in 3 tranches of 17m each, and the time for the payment of the first GH17m was due, we should pay that and then he stayed the payment of the remaining 2 tranches. Hold your breath now. On 22nd September, we paid Woyome Gh17m, THEREBY PAYING HIM A TOTAL OF GH58M, AN OVERPAYMENT OF GH7m! At a time when we were fighting paying anything at all, and the court had stayed execution of the Gh34 balance, we overpaid the man!
Woyome took our money, including the extra 7m for Christmas, we continued with our new case and then in late 2011 EOCO freezes his accounts? Is this not insulting and laughable? But back to your question whether we can blame the president. I don’t envy him. It appears that at least 2 letters hit his office. Were they shown to him? We might never know. But heads or tails he gets wahala. If he says he knew, we will say he has complicity. If he says he didn’t know, we will say he is weak.
We say we made a mistake and have sued Woyome. We told the court to stay execution because Woyome doesn’t have the means to refund the money if we paid him. The court agrees in part and says we should pay only GH17. Then we overpay what we allegedly owe him by GH7m. Then our Deputy AG says we never had a defence and that we had a bad case, meanwhile we are still in court saying we had a good case. Is the house divided against itself? Are we serious?
Let us assess all of these with the following words ordered by the President: “When this case first broke, I was in the US and I ordered the two ministries involved, at the Attorney General’s Department and the Finance Ministry, to give me a report, a report which I wanted to be published so that the world would know what happened. But upon further thought, I thought that the issue is not whether the amount was paid, who paid it…. First of all, who incurred the liability?…I would want to tell the beneficiaries that I am not out to embarrass them — NO…We have to find out who incurred the liability because if the court awarded the judgment or awarded the cost, whatever it is, it’s a way of saying that the beneficiary is entitled to it…Now, who made it possible for that beneficiary to be entitled to that amount?”
I think this should be enough for even that dude who always trailed in all his classes all his life. Woyome stinks and as I have said elsewhere before, Woyome may just propel Mills into our history books as the first President to miss out on a second term. Woyome-gate is huge (or rather gargantuan) and it stinks worse than the head of a dead fish.
PO: January 31, 2012