[ 2012-07-10 ]

Martin Amidu points to massive rot at A-G’s office
Former Attorney General Martin Amidu is
challenging claims the state sought to settle out
of court an amount of 1.5 billion dollars being
demanded by African Automobile Limited for some
cross country vehicles they imported for
government in 2001.

The former A-G insists he had no knowledge of the
supposed attempt to make any out of court
settlement even though he was in office at the
time.

Mr. Amidu in his latest statement also suggests
massive rot at his former office and points to a
Supreme Court ruling that has serious implications
for African Automobile’s claims about contractual
relations with the state.

Below is the full statement

MARTIN AMIDU ON GALLOPERS, SETTLEMENTS AND THE
HALLOWED TRADITIONS OF THE OFFICE OF THE
ATTORNEY-GENERAL: BY MARTIN A. B. K. AMIDU

I have read and heard various versions of the
story, narrative, and discourse on what the former
Minister of Local Government and Rural Development
describes as: “Press Statement, The Galloper II
Vehicles.” July 2011 features prominently as the
month in which a decision was made to discontinue
or hold in abeyance the continuation of the case
in Court to explore a possible settlement. In this
regard, his matter touches upon the period of my
tenure as the Attorney-General of the Republic of
Ghana under Article 88 of the 1992 Constitution
for which I am personally accountable to the
people of Ghana for my conduct in office. I,
therefore, have to speak out on this matter.

I took over as the Attorney-General and Minister
for Justice on 21st January 2011 to 19th January
2012. Within the period that I was the
Attorney-General under Article 88 of the
Constitution I had the sole and personal
responsibility under my oath of office for the
running of the Attorney-General’s Department.
Unlike Article 79 of the Constitution, Article 88
does not establish a position of a Deputy
Attorney-General. Even in the case of the ordinary
Ministerial level, the Chief of Staff wasted no
time in reminding Deputy Ministers that they could
not under the Constitution write or sign letters
in their own capacity as Deputy Ministers. They
had to do so only upon the instructions or the
authority of the Minister under Article 78 and on
behalf of the Minister.

The Joy News editor, Samson Lardy Ayenini, in an
article on myjoyonline.com of 6th July 2012 claims
to have gone through the stack of court documents
on the Gallopers and states that African
Automobile Limited “filed the writ in 2005”, and I
believe, a statement of claim as well. This is
because he adds that: “but the A-G at the time
filed a defence, making a counter-claim.” He later
gives a narration of the content of African
Automobile Limited’s Statement of Claim after
which he states to my utter shock and surprise
that: “In July 2011, African Automobile Ltd.
applied to the court to discontinue with the case
stating the possibility of settlement
negotiations.” I have been shocked and amazed
because if in July 2011 the Attorney-General had a
defence and counter-claim in the suit the only
person who could have given express authority for
the Attorney-General’s office to accept any offer
to hold the case in abeyance to attempt an out of
Court settlement was myself, the Attorney-General
at the time. In my unavoidable absence for
whatever reasons the President had to specifically
appoint in writing another Minister to double as
Minister of Justice (not as Attorney-General) to
act in my place with a copy of the letter to me to
enable me hand over to that Minister.

No such temporary appointment took place in July
2011. Neither the Deputy Attorney-General, Hon.
Barton Odro, MP, who took liberties for claiming
to hail from Cape Coast with the President of the
Republic nor the Solicitor-General, Mrs. Amma
Gaisie had the constitutional authority under
Article 88 to make such an important and critical
decision which could cost millions of Ghana Cedis
to the Republic without my expressed concurrence
and in writing. I make bold to say that not even
the President who appointed me as the
Attorney-General could under Article 88 of the
Constitution delegate my constitutional functions
as the Attorney-General to any other person or
authority without first relieving me of my
appointment by express revocation of my warrant of
appointment.

This is why I state unequivocally that any
decision by anybody to hold in abeyance the
conduct of the case between African Automobile
Limited Vs. the Attorney-General in July 2011
which was not made by me, as the Attorney-General,
was unconstitutional, fraudulent, null and void as
contravening Article 1(2) of the Constitution. It
could only have been intended to promote some self
serving purpose by the person or persons who took
the decision in violation of Article 88 of the
Constitution particularly, sub-clause (5) thereof.


And I wish to state for the avoidance of doubt
that no file on the case involving the Galloper II
Vehicles was ever submitted to me as
Attorney-General with recommendations for any
decision whatsoever. I challenge the Deputy
Attorney-General and the Solicitor-General during
my tenure of office to produce evidence to the
public that the file on the Gallopers was ever
brought to my attention as the Attorney-General
for any action and my instructions thereon to have
warranted an agreement in July 2011 to enter into
settlement discussions on behalf of the Republic
of Ghana. If there is no such evidence on the
file, then, the Deputy Attorney-General, Hon.
Barton Odro, and the Solicitor-General, Mrs. Amma
Gaisie, have some explaining to do to the people
of Ghana; how come the case was discontinued or
held in abeyance for settlement without authority
from the Attorney-General?

If the alleged discontinuance or holding of the
case in abeyance was done unconstitutionally it
will follow that my successor cannot rectify a
void and unconstitutional act by any usurpers of
the authority granted the Attorney-General under
Article 88. Any experienced legal practitioner
assuming the office of the Attorney-General must
have satisfied himself by now that any on-going
settlements he inherited were properly authorized
by the person with Constitutional authority to do
so. The Deputy Attorney-General, Hon. Barton Odro,
and the Solicitor-General, know that I always
insisted that whatever I continued from my
predecessor was properly authorized in accordance
with the law since I had personal responsibility
for whatever happened during my tenure. No
Commission of Enquiry or Court would take the
excuse that ones predecessor breached the
Constitution so one also continued to do so.

In accordance with the hallowed tradition of the
Attorney-General’s office the Deputy
Attorney-General and the Solicitor-General should
state whether or not the holding of the case in
abeyance for settlement negotiations was initiated
by the Attorneys directly handling the case in the
Court or upon instructions from either of them. If
the Attorneys handling the case initiated the
negotiations for settlement there must be
memoranda coming up to the Solicitor-General and
beyond stating the necessity for a settlement. If
it was initiated from the Deputy Attorney-General
or the Solicitor-General there must similarly be a
memorandum or memoranda to the Attorney-General
recommending the necessity for a settlement. The
Deputy Attorney-General and the Solicitor-General
know that this was the procedure adopted when
recommendations were made to me on 11th November
2011 to consider the proposals for withdrawal of
the case of Attorney-General Vs. Alfred Agbesi
Woyome from the High Court for settlement
negotiations which I refused, for good legal
reasons, to withdraw.

I had been a Deputy Attorney-General and Deputy
Minister for Justice for upwards of twelve and
half years and know more than anybody else the
limits of the authority a Deputy Attorney-General
and the Solicitor-General. Consequently, I did not
waste time when I assumed office as the
Attorney-General in reminding the Deputy
Attorney-General, Hon. Barton Odro, MP and the
Solicitor-General, Mrs. Amma Gaisie, that I would
not take responsibility for any actions or
omissions by either of them or those working up to
them unless the acts or omission were done with my
knowledge and express authorization. The situation
I met at the Attorney-General’s office upon my
first briefings when I took over as the
Attorney-General justified my insistence that no
major decisions that committed the Republic to the
settlement and payment of money or so called debt
was done without my express authority.
It is on record that I refused to endorse a number
of so called settlement agreements that were
forwarded to me by the Solicitor-General either
directly or through the Deputy Attorney-General
because there was no evidence of authorization
either from my predecessor or myself for entering
into the settlement agreement or that my
predecessor’s instructions had overlooked aspects
of the Constitution or the law. There were other
written records of cases file in which I refused
to endorse and forward to the Minister for Finance
and Economic Planning for payment of settlements
purportedly entered into by junior Attorneys
without any indication on file of their authority
to commit the Republic of Ghana to such debts.

There is also evidence of several memoranda I
wrote to the Deputy Attorney-General and the
Solicitor-General asking for explanations for the
Republic having to pay certain settlements or
judgment debts which were never answered in spite
of reminders. Some of these memoranda related to
other African Automobile Limited judgments in
which the Court of Appeal or High Court had had to
make adverse comments about the performance of the
Attorneys who represented the office in Court.

The Deputy Attorney-General and the
Solicitor-General knew that my general attitude to
cases pending in the Courts was to allow the Court
to decide rather than settle them out of Court,
abuse the Court process and fool the electorate
and general public by transforming them into
consent judgments granted by the Court. I also
insisted that in the exceptional cases in which
the office had to consider settlement of cases out
of Court the settlement proposal had to be
accompanied by a written memorandum citing
relevant precedents for the conclusions reached,
coming from the Attorney handling the case through
his Head of Group to the Solicitor-General to the
Deputy-Attorney-General and then to me, the
Attorney-General for consideration and final
decision. I reminded the Solicitor-General several
times that this was the hallowed practice of the
Attorney-General’s Office in settling cases for
purposes of probity, accountability and
transparency in discharging the burdensome and
onerous duty in approving payments from the
Consolidated Fund. I told the Deputy
Attorney-General who was making his first stint as
a Deputy Attorney-General that the practice was
evolved to prevent putting temptation in the path
of the Attorney-General in just assigning any
figures to cases to settle at his whims. This
brings the Attorney-General into unnecessary
suspicion and disrepute in the exercise of his
quasi judicial functions.

I had the misfortune of entering into an office
where a long and hallowed tradition of settlement
or legal decision making being accompanied by
legal justifications from the bottom-up that
enabled the Attorney-General within his busy
schedule to make informed decisions had been
abandoned. A number of debt settlements that had
been signed by the Deputy Attorney-General and
letters signed to the Minister of Finance and
Economic Planning for payment had no memoranda
attached to them to show the legal basis of
arriving at the settlements. A number of other
settlements by the Attorney-General and letters to
the Ministry of Finance and Economic Planning also
had no memoranda supporting how the settlements
and figures were arrived at.

In a number of written responses from the
Solicitor-General to some of my memos she
disclaimed any knowledge about how the figures
were arrived at or even her being allowed making
her views known on the matters. That was why I
wanted the right thing to be done in accordance
with the hallowed traditions of the
Attorney-General’s office, in which I had
practiced as Deputy Attorney-General for over a
decade, during my tenure of office as
Attorney-General. It saves one’s integrity and
indemnifies one against corrupt practices.

After 23rd December 2011 when President was busy
diverting the electorate’s attention from the
crimes involved in the Woyome payments to those
who created the liabilities, Hon. Barton Odro, the
Deputy Attorney-General, had the boldness, without
any direct or express authority from me since I
took over as the Attorney-General to work out and
arrive at a settlement of GH˘38 million plus for
alleged wrongful dismissal of workers of the
National Mobilization Progamme by Mr. Jake
Obetsebi-Lamptey in a pending Court case that had
been brought by the dismissed workers against the
Attorney-General.

I queried the settlement and instructed that the
Court be allowed to determine whether or not there
was wrongful dismissal. I pointed out that unless
the Court determined that Mr. Jake
Obetsebi-Lamptey had indeed wrongfully dismissed
the workers it was full hardy for me as the
Attorney-General to settle the matter on the basis
of wrongful dismissal and pretend that my decision
could be used to prosecute Mr. Obetsebi-Lamptey
for causing financial loss to the state.
There are other cases which were settled before I
went to the Attorney-General’s Office under the
naďve believe that evidence of the
Attorney-General’s settlement could be used as
evidence of causing financial loss to the state.
As a former PNDC operative, my decision in the
National Mobilization Programme settlement case, a
temptation put in my path, was difficult for me as
a politician. But I was acting not as Minister of
State, a politician, but as the Attorney-General
of the Republic, a quasi judicial officer, who has
faith in the judicial system to determine the
issues presented to the Court by the parties. I
have deliberately stayed away from the controversy
whether or not there was a binding and subsisting
contract between African Automobile Limited and
the Government of Ghana at the time of the
performance of the contract because of my faith in
Constitution and its Courts. My attitude towards
the presumptuousness of any Attorney-General who
wants to court suspicion for himself in the
settlement of such pending cases are well known to
have decided those with access to the case files
not to have allowed me to see the file on the
Gallopers while I was the Attorney-General.

My considered view is that it is always better for
an Attorney-General to have faith in and prefer a
Court’s interpretation of facts to determine
whether or not there is a contract between
litigants as a matter of law than to arrogate to
himself that judicial function and open himself up
to suspicions and unwarranted insinuations of
motives inconsistent with his quasi judicial
office.

In Civil Appeal J4/23/2012, African Automobile
Limited vs. The Attorney-General, 6th June 2012,
(Supreme Court, Unreported) the Supreme Court
dismissed African Automobile Limited’s appeal for
the enforcement of an agreement to be paid
compound interest on the grounds that a referee
appointed by the High Court had found that two
exhibits constituted a contract between the
parties. The Supreme Court said: “This submission
misses the point of Ofoe JA’s analysis in the
passage from his judgment quoted above. His point
indeed is that the interpretation of facts to
determine whether they result in the conclusion of
a contract is a matter of law for a judge to
undertake. Accordingly, the assumption by the
referee that Exhibits A and B resulted in a
contract and therefore their terms were to be
applied to the calculation of interest on the
indebtedness he ascertained was not binding on the
trial court nor on the Court of Appeal. He [Ofoe
JA] was correct in his analysis.” The Supreme
Court accordingly affirmed both the decision of
the High Court and the Court of Appeal by
“upholding the legal conclusion of the learned
trial judge that Exhibits A and B did not result
in the formation of a contract.”

An Attorney-General must not have a personal or
political bias in any case in the exercise of his
professional responsibilities under Article 88 of
the Constitution. My long experience as a Deputy
Attorney-General has taught me that it is
professionally better to allow the Courts assigned
under the Constitution to determine conclusively
whether or not there is a subsisting contract
between the African Automobile Limited and the
Government of Ghana in the pending case to do so.
An Attorney-General, with years of legal practice
to his credit, knows he will ultimately take
personal and professional responsibility for
saddling the Republic with any debt settlement. He
would consequently not act upon the basis of the
opinions of persons who may have self-serving
interests in any out of court settlement or court
settlement of cases however learned or powerful
they may claim to be in the law or in the
Government overtly or covertly. Caution, they say
is the better part of valour. The Supreme Courts
can never, in making authoritative decisions on
the law, cause financial loss to the state.


Martin A. B. K. Amidu

Source - GRi

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