IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
ALFRED AGBESI WOYOME - (Appellant)
THE ATTORNEY GENERAL - (Respondent)
DATE: 8TH MARCH, 2018
SUIT NO: H1/42/2017
JUDGES: V. D. OFOE J. A. (PRESIDING), S. DZAMEFE J. A., M. M. AGYEMANG (MRS). J. A.
PETRINA DEFIA FOR APPELLANT
PATIENCE A. LARTEY FOR RESPONDENT
On the 8th day of October 2012 the President of the Republic of Ghana in the exercise of his power under Article 278 (1) (a) of the 1992 Constitution of the Republic, set up per a Constitutional Instrument CI 79, the Commission of Inquiry Into Payments From Public Funds Arising From Judgment Debts And Akin Matters. Justice Yaw Appau JA (as he then was) was appointed its Sole Commissioner.
The terms of reference of the Commission were:
a) To ascertain the causes of any inordinate payments made from public funds in satisfaction of judgment 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, and
c) To make recommendations to the Government for ensuring that as far as practicable
i. The instances where public funds are utilised 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.
Article 280(1) of the 1992 Constitution required the Commission to:
“(a) Make a full, faithful, and impartial inquiry into any matter specified in the instrument of appointment;
(b) Report in writing the result of the inquiry; and
(c) Furnish in the report the reasons leading to the conclusions stated in the report.”
The Commission concluded its work on 20th May 2015 and its report was submitted to the President on the 21st of May 2015. On the 18th of November 2015, the Government published the Commission’s report together with a White Paper thereon.
The Commission, according to its report, “delved into twenty-five (25) selected cases of judgment debts (including arbitration and negotiated settlement awards) that the State had to pay to individuals/companies/institutions…”
One such case involved a judgment debt paid by the State to one Alfred Agbesi Woyome (the appellant herein) who brought suit against the Attorney General on the 19th of April 2010. In that suit, the plaintiff by his writ of summons and statement of claim, sought the following:
i. An order for the immediate payment of the sum of GH¢41, 811, 480, 59 being financial engineering costs owed plaintiff by the Government of Ghana;
ii. An order for payment of interest on the said sum from September 2006 till date of final payment;
iii. General damages for inconvenience suffered by plaintiff as a result of the long delay in paying him his fees;
iv. Costs including Solicitor’s fees and filing fees;
v. Any further or other order(s) as to this Honourable Court may appear just.
The writ of summons was amended on 4th May 2010 and further amended on 6th May 2010. By this further amended writ of summons, the plaintiff claimed the following:
a. An order for the payment of Euros 44, 259,009.48 or its cedi equivalent at the forex bureau exchange rate representing cost of services rendered by plaintiff for the Government of Ghana for the procurement of facility in the sum of Euros 1,106, 470,587.00 for the construction of sports stadia, medical facilities, irradiation plant and tissue culture facilities between 2001 and 2006;
b. An order for the payment of Euros 11,600,289.44 being accrued interest on the sum of Euros 44, 259,009.48 from September 2006 up to April 2010 at the rate of Eurobar 1 year plus three points;
c. Interest on the sum of Euros 44, 259,009.48 or its cedi equivalent at the current forex bureau rate of Eurobar 1 year plus three points from May 1 2010 up to and inclusive of date of final payment
d. Costs, including lawyer’s fees.
The court entered judgment for the plaintiff in default of defence for the cedi equivalent of the sum claimed. Upon this, the plaintiff filed an entry of judgment for the sum of GH¢105,565,548.24 which comprised the following:
a. The cedi equivalent of Euros 44,259.009.48 - GH¢ 83,622,961.38
b. The cedi equivalent of interest of Euros 11,600,289.44 - GH¢ 21,917.586.86 and,
c. Costs of GH¢25,000.
The Attorney-General thereafter sought to compromise the judgment by negotiating with the plaintiff to accept judgment in the sum of GH¢41,811,480.59 plus interest of GH¢ 9,447,000.00 and costs of GH¢ 25,000, a total of GH¢ 51,283,480.59 payable in three installments. Although the Attorney General subsequently had a change of heart and tried to set aside the terms of settlement reached between the parties, the learned trial judge refused to permit this, and instead entered consent judgment upon the said terms.
The Commission which was set up to inter alia, investigate “the causes of any inordinate payments made from public funds in satisfaction of judgment debts since the 1992 Constitution came into force”, made with respect to the appellant’s case, six adverse findings, four of which attributed wrongdoing to the appellant, the other two, to public officials who were alleged to have perhaps enabled or simply permitted the enterprise of the appellant to commit fraud against the Republic. The Sole Commissioner described the judgment debt as inordinate, and fraudulent.
More particularly, the Commission’s findings upon which the Government White Paper was issued and which are relevant for the instant appeal were that:
“a. 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 had done so he would not have granted the application for default judgment in the first place;
b. The bank accounts of the wife of the Chief State Attorney was later found… to have ballooned by the payment into it of the sum of GH¢400,000 by Alfred Agbesi Woyome after the deal became successful;
c. The then Attorney-General in deciding to negotiate with Alfred Agbesi Woyome for the payment to him of the cedi equivalent of Euro 22,129,501.74 as representing 2% of the alleged financial engineering costs, was ignorant about the facts of the case Woyome had pleaded in court;
d. The trial court seriously erred when it granted a default judgment that was procedurally flawed in many respects. The default judgment was a complete nullity due to the procedural irregularities that completely destroyed its foundation;
e. There was no basis for the payment of the sum of over GH¢51 million to Alfred Agbesi Woyome. This is because he was not entitled to any such payment as the EOCO rightly found and stated in its interim report.
f. The payment to Alfred Agbesi Woyome was inordinate, and at the same time fraudulent. It therefore constituted a huge financial loss to the State.”
In carrying out his duty to investigate the said matter, and to make findings and recommendations, the Sole Commissioner expressed himself to have relied on: “official documents received from the trial High Court, Alfred Agbesi Woyome himself, the Attorney-General, and then the office of the Economic and Organised Crime Office (EOCO)”.
Mr. Woyome’s presence was however, dispensed with.
In the words of the Sole Commissioner, he did not invite Mr. Woyome to appear before the Commission “due to the pendency of the fresh action the Attorney-General had initiated in the High Court to have its previous judgment set aside. However Alfred Agbesi Woyome through his legal counsel made available to the Commission upon request, copious documents which he alleged supported his case. The Commission not being a trial court but a fact-finding body did not want to subvert the authority of the trial court which was handling the case in question”
It is against the adverse findings of the Sole Commissioner (supra) that the present appeal has been brought pursuant to Article 280 (2) of the 1992 Constitution.
Article 280 (2) reads: “Where a commission of inquiry makes an adverse finding against any person, the report of the commission of inquiry shall, for the purposes of this Constitution, be deemed to be the judgment of the High Court; and accordingly, an appeal shall lie as of right from the finding of the commission to the Court of Appeal.”
The appellant seeks by this appeal the following reliefs:
i. An order to set aside the findings of the Sole Commissioner against the appellant for breach of the rules of natural justice;
ii. An order directed at the respondent to expunge from the White Paper dated 18th November 2015 and the Report of the Sole Commissioner, the findings pertaining to the appellant;
iii. An order directed at the respondent to expunge from all internet sites, internet search engines such as google, yahoo, etc. and other media outlets, any mention of the appellant in the White Paper and the Report of the Sole Commissioner; and,
iv. An order directed at the respondent to pay the solicitor’s fees and other legal costs of the appellant in this matter.
The appellant set out the following grounds of appeal:
1. That the Sole Commissioner breached the rules of natural justice when he failed to give the Appellant a hearing before making his findings and decision against him.
2. That the findings and decisions of the Sole Commissioner cannot be supported having regard to the documentary evidence he claimed to have reviewed;
i. That the Sole Commissioner erred in fact and in law when he found that the Attorney General, in deciding to negotiate with Alfred Agbesi Woyome for the payment of the cedi equivalent of Euros 22,129,501.74 to him as representing 2% of alleged financial engineering cost, was ignorant about the facts of the case the Appellant pleaded in court;
ii. That the Sole Commissioner erred in fact and in law when he found that the Attorney General went ahead and finally ordered for the payment of Euros 22.129,501.74 to be made without scrutiny of the plaintiff’s claim and due diligence;
iii. That the Sole Commissioner erred in law when he found that the default judgment was procedurally flawed in many aspects either through the inadvertence or pure mischief through connivance of the Chief State Attorney who was charged with the defence of the suit in the trial court;
iv. That the Sole Commissioner erred in law when he found on the basis of the Economic and Organised Crimes Office (EOCO) Interim Report that there was no basis for the payment of the sum of GH¢ 51 million to the Appellant;
v. That the Sole Commissioner erred in law when he found that the payment to the Appellant was inordinate and fraudulent and that it constituted a huge financial loss to the State;
vi. That the Sole Commissioner erred in law when he recommended that in line with the review decision of the Supreme Court, the State must recall the money paid to the Appellant with interest;
vii. That the Sole Commissioner erred in fact and in law when he found that the bank accounts of the wife of the Chief State Attorney Mrs. Nerquaye Tetteh was later found by EOCO to have ballooned by the payment into it of the sum of GH¢400,000 by the Appellant after the deal became successful.
In the respondent’s submission, he raises what should have been a preliminary objection to the hearing of the appeal. The respondent contends that the instant appeal is incompetent, as it has been brought out of time. The respondent contends that the Report of the Commission was made on 20th of May 2015, and that it was announced to the public by the mass media in a ceremony on the 21st of May 2015. The respondent calculated that after an initial period of six months that would give the report the force of a judgment of the High Court, the appellant had three months following that to bring his appeal. Thus, the respondent contends that the appeal should have been brought by March 21 2016 instead of June 2016 when the instant appeal was lodged.
In his response, the respondent points out that the Report, along with the Government White Paper were published on the 18th of November 2015, and that it was not until May 2016 that the six months requisite for the crystallization of the Report into a High Court judgment was reached. Thus the suit brought in June 2016, he contends, is well within the three months allowed for appeals.
Indeed the appellant’s position is the correct one as that is supported by the evidence before us. But we really ought not to have countenanced the respondent’s arguments as they were not anchored on a proper process. As we have already pointed out, this objection to the appeal as being out of time should have been raised in accordance with Rule 16 of the Court of Appeal Rules CI 19 which prescribes three clear days for such to be raised, and furthermore, that the notice of a preliminary objection had to state the grounds of the objection.
Having dealt with the objection in limine, we go on to consider the merits of the appeal. The first ground of appeal is not concerned with the merits of the adverse findings, but is an attack on the alleged procedural irregularity of the proceedings that culminated in the said adverse findings.
The complaint is that the appellant did not receive a fair hearing. Having regard to the evidence before us, did the Sole Commissioner fail to observe the audi alteram partem rule of natural justice, thus failing to give the appellant a fair hearing?
Article 23 of the 1992 Constitution reads:
“Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisions shall have the right to seek redress before a court or other tribunal.”
In Awuni v West African Examinations Council [2003-2004] SCGLR 471, their Lordships expatiated on the said Article 23 of the 1992 Constitution by outlining the requirement of the observance of the audi alteram partem rule of natural justice as a sine qua non for administrative or quasi-judicial bodies whose decisions affect the rights of persons. In this regard Kpegah JSC observed that: “The phrase “to act fairly and reasonably” in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principles of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in article 23…”
Sophia Akuffo JSC (as she then was) also had this to say:“In my view, the scope of Article 23 is such that, there is no distinction made between acts done in exercise of ordinary administrative functions and quasi-judicial administrative functions. Where a body or officer has an administrative function to perform, the activity must be conducted with, and reflect the qualities of fairness, reasonableness and legal compliance. I will not venture to give a comprehensive definition of what is fair and reasonable…” and then:
“The binding duty imposed on administrative bodies ‘to act fairly and reasonably’ in Article 23 of the Constitution 1992, necessarily imported a duty on the respondent to observe the common maxim of audi alteram partem and other principles of natural justice implicit in Article 23 of the Constitution.”
What is fair hearing?
In Black’s Law Dictionary 8th Ed. 2004 2110, “Fair Hearing” is defined as: “A judicial or administrative hearing conducted in accordance with due process.”
“Due Process” is then defined at page 1520 as: “The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case”
Regarding its application, the learned authors of Halsbury’s Laws of England 4th Ed. 93 at pp.76 postulate crisply, that: “A person or body determining a justiciable controversy between parties must give each party a fair opportunity to put his case and to correct or contradict any relevant statement prejudicial to his view”.
We venture to add that it is fundamental to our common law jurisprudence, that no man be condemned before he is heard. This requires that any tribunal whose determination or orders affects the rights of others, must observe the rules of natural justice including the audi alteram partem rule which is: the right of a person who is to be affected by its findings, decision, orders, to a fair hearing. It includes the right of the party to be informed of the allegation against him and the grounds of such allegation including the evidence against him and to permit him adequate preparation to respond to them.
To ensure adherence to the audi alteram partem rule by Commissions of Inquiry, it is provided in Rule 8 of the Commissions of Inquiry (Practice and Procedure Rules) 2010 C.I.65 that a person: “whose conduct is the subject of the inquiry or who has an interest personal or otherwise in the inquiry…” shall be served with a notice to appear before the Commission three weeks after the appointment of the Commission.
Rule 8 further outlines that the said notice which may be served by hand, by registered mail to the last known address or place of abode, or through publication in a medium of mass communication which has a national coverage, shall have the following contents:
· A statement of the reasons for the invitation;
· The questions which the person invited is likely to be required to answer;
· The date, place, and time of his attendance;
· His/her right to be represented by a lawyer of his choice, and an expert for the protection of his/her interest.
The notice shall also require him/her to submit:
· A statement of case;
· The records and documents which he may intend to rely on;
· The names and addresses of his/her witnesses;
· The name and address of counsel.
Although the appellant in his submission extensively argues that Rule 7, but not Rule 8 was complied with when the Commission requested the appellant to furnish it with documents, that is in fact not so, as Rule 7 deals with memoranda to be furnished by members of the public with information regarding the subject of the inquiry.
In the instant matter, it was in apparent partial compliance with Rule 8 of C.I. 65 that the Commission wrote to the appellant on 19th March 2013. We reproduce in extenso, the relevant portions of that letter:
“RE: REQUEST FOR INFORMATION
By the instrument of C.I.79, a Commission of Inquiry into Payments from Public Funds arising from Judgment debts and related processes has been set up by the President effective October 2012.
In furtherance of the work of the Commission, please arrange to provide all the complement of documents supporting your claim from the time of bidding to the time of payment of your claim by 2nd day of April 2013.”
In response thereto, the appellant promptly sent under a cover letter, documents under twelve heads. Not having been required to, he did not submit a statement of his case, as indeed, he was not informed, along with the request for information, that his conduct in the whole affair would be the subject of inquiry.
The Sole Commissioner on his own showing, did not invite the appellant to appear before the Commission by himself or by counsel. As aforesaid, he did not, as Rule 8 of CI 65 required him to do, require the appellant as the subject of his inquiry, to present a statement of case, or to name his witnesses(if any). The Sole Commissioner stated that the said documents as well as, documents from EOCO, the Chief Registrar of the High Court, and “all the relevant documentation pertaining to the payment of the money to the appellant”, presented “unquestionable documentary evidence obtained from all the players in the game”. Having gone through them, he went ahead to make adverse findings against the appellant, and this, without fully complying with Rule 8 of CI 65.The question is: in the face of the statutory provisions contained in Rule 8 CI 65, aimed at ensuring adherence to the audi alteram partem rule, as underpinned by Article 23 of the Constitution which imposes the duty of observing procedural fairness, reasonableness, and the performance of duty according to law, was the Sole Commissioner permitted to dispense with the attendance of the appellant, and did this decision to dispense with his attendance deny the appellant a fair hearing?
Although Rule 8 of CI 65 sets out in detail steps aimed at complying with the audi alteram partem rule of natural justice, Rule 20 of CI 65 permits deviation from the application of a provision of the Rules. We reproduce Rule 20: “A Commission may deviate from the application of a provision of these Rules where in the opinion of the members of the Commission, strict adherence to the provision is not compatible or is not essential to the performance of the functions of the Commission”.
That the Sole Commissioner deviated from full compliance with Rule 8 of CI 65 cannot be gainsaid, and in an apparent effort to give reasons for such deviation, the Sole Commissioner twice, in the report of the Commission, gave his reasons for his decision not to invite the appellant to appear as follows:
“Two separate but intertwined aspects of the Woyome payment were before the courts viz; the High Court and the Supreme Court for determination. These were aside of the investigations conducted into the whole affair by EOCO, at the time (the) Commission was tasked to go into all judgment debts against the State. This Commission therefore did not find it necessary to invite Alfred Agbesi Woyome to appear personally before it to testify on the payment made to him as the main issue was sub-judice”; and then:
“This Commission did not find it necessary to call Alfred Agbesi Woyome personally as a witness due to the pendency of the fresh action the Attorney-General had initiated in the High Court to have its previous judgment set aside.”
As aforesaid, Article 23 of the 1992 makes ‘fairness and reasonableness’ (which expression has been interpreted to include the observance of natural justice), as well as compliance with applicable legal requirements, essential to the work of the Commission as an administrative body, and it may not be dispensed with.
As Kpegah JSC noted in Awuni v WAEC (supra):“In this country, the right to be heard is a fundamental principle enshrined in our Constitution and cannot be ignored for reasons of administrative inconvenience”.”
Would Rule 20 permit a deviation from compliance with Rule 8 in the circumstances?
The observance of fair hearing has been held not to be restricted to adherence to procedure in curial proceedings such as the requirement to receive viva voce evidence. In Aryee v. State Construction Corporation [1984-86] 1 GLR 424 and in Awuku-Sao v Ghana Supply Company Ltd  SCGLR 710, the courts recognised that it was not in every case that a hearing involved the physical presence of the person to be affected by administrative proceedings.
But there is no gainsaying that in the cited cases, although the plaintiffs had not been invited for a viva voce presentation of their cases, they were given the opportunity to give their side of the story in written form.
The Commission’s terms of reference were with regard to finding out the circumstances of inordinate judgment debt and other payments arising out of dispute resolution. Regarding these terms of reference, it is our view that the Sole Commissioner may very well have been able to rely on the documents he received, being public records to ascertain whether the judgment debt in the appellant’s case was inordinate, and to dispassionately set out the circumstances leading to them. The ultimate goal was to have enough information to make recommendations to the Government in order that in the future, its transactions with other parties would be entered into more carefully and advisedly. If within the said terms of reference, the Commission had conducted its work by simply reviewing the claims that resulted in the judgment debts without seeking to find fault in the conduct of parties to the cases, a simple request to the appellant to present the documents he relied on to make his claim before the High Court, and other relevant documents may (as the Sole Commissioner declared was in fact the case), have been sufficient to find out whether the payments were inordinate having regard to its surrounding circumstances.
But the Sole Commissioner introduced another element which was aimed at filling in the gap of documentary evidence by discussing the circumstances, and having regard to the conduct of the appellant and other players, including possible collusion that the appellant may have been involved in to secure the judgment debt.
In this enterprise, the Sole Commissioner, found a reason for the entry of the default judgment which he stated was full of “glaring procedural irregularities”, and it was that there must have been a “deal” between the Chief State Attorney and the appellant which he used to explain the circumstance of monies being paid into the account of the wife of the former.
In this way, the Sole Commissioner moved from simply reviewing a claim before the courts for which judgment was entered for an enormous sum of money, to ascribing unsavoury, and perhaps even criminal conduct to some players, not excluding the appellant whom he held not to be entitled to the default judgment, as the reason for the circumstance.
We reproduce statements that faulted the conduct of the appellant: “This Commission finds as a fact that there was no basis for the sum of over GH¢51 million to the plaintiff Alfred Agbesi Woyome. This is because, he was not entitled to any such payment as the… (EOCO) rightly found”.
“The fact is Alfred Agbesi Woyome did not demonstrate in any way in his statement of claim that he ever brought into the country through his alleged financial engineering expertise…”
“He could not therefore be entitled to 2% of that amount as he deceitfully succeeded in claiming from the State…”
“The said payment to Alfred Agbesi Woyome was inordinate and at the same time fraudulent…”
Thus, the Sole Commissioner did not simply engage in an enterprise of examining the claim that was placed before the trial High Court, along with the circumstances surrounding it, and the payment of the judgment debt that resulted from it, that is the transactions impliciter- the matter within his terms of reference. He also pursued the adventure of examining the circumstances thereof with regard to the appellant’s conduct therein, that is his role in the transaction, without any input from the appellant and/or his witnesses and ended up making adverse findings against the appellant regarding same, including the appellant’s alleged collusion with Mr. Nerquaye Tetteh the Chief State Attorney, and the allegedly irregular procedure of the trial court.
For such an exercise, the Sole Commissioner was bound, to attain Article 23’sthree-pronged standard of “fairness”, “reasonableness” and “compliance with the provisions imposed by law” to give the appellant a fair hearing by fully complying with the provisions of Rule 8 of CI 65.As aforesaid, Rule 8 which provided for the invitation of the person whose conduct was the subject of the inquiry (the appellant herein), also prescribed matters that would give him opportunity to prepare his case to present as part of the investigation. Save the request for documents, none of the crucial elements contained in Rule 8, aimed at giving the appellant a fair hearing by giving him an opportunity to fully tell his side of the story, were complied with. These Rule 8 requirements were intended safeguards against arbitrariness, unreasonableness, unfairness and the abuse of power.
The Sole Commissioner gave his reason for dispensing with the personal attendance of the appellant, and it was that the very matters were sub judice, and he did not wish to prejudice the hearing thereof. In our judgment, the reason proffered was not strong or compelling enough to justify dispensing with the invitation to appear, or at the very least, a request to furnish the Commission with a written statement of his case, to enable him tell his side of the story, a fundamental requirement in our jurisprudence. This was necessary because the Sole Commissioner was not engaged in simply setting out what was contained in documents that were public records, but also examining the appellant’s conduct in the whole saga. As it turned out, he thereby made adverse findings against him.
It is not that as the respondent argues, the Sole Commissioner could not have made those findings from the documents before him. The matter is whether he should have done so when he was examining the conduct of the man who got the judgment, and that of persons he referred to as “players” in the saga without hearing what he had to say.
In the appellant’s written submission before us he has stated that he in fact indicated to the Commissioner that he had cases before the courts which he expected to conclude before appearing before the Commission. Although the respondent has made capital of this, we are not persuaded that the said circumstance justified the appellant’s exclusion from the hearing before the Commission. This is because if the appellant had made this intimation after he had been served with an invitation fully compliant with Rule 8 of CI 65, then the respondent’s submissions would have been tenable, for then the Commissioner would not be expected to wait for the end of those cases as the dates for such were uncertain.
But not so in this case. It is manifest that the Sole Commissioner, having failed to do what he was statutorily required to do, which is: complying with Rule 8 of CI 65, nonetheless made adverse findings, including the suggestion of collusion by the appellant with public officials.
In this enterprise, not having had input from the appellant or other persons connected with the transaction he was investigating, some of the Sole Commissioner’s findings (such as findings (b),(e) and (f) in the Report and captured in the White Paper), appeared to have been founded upon mere conjecture, (which is defined in the Concise Oxford English Dictionary as: “an opinion or conclusion based on incomplete information”),rather than inferences drawn from established facts. He was not entitled to be so engaged. To expatiate, we are guided by the celebrated dictum of Lord Macmillan in Jones v. Great Western Railway Co. (1930) 144 L.T. HL 194, at 202 “The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof”.
The Sole Commissioner was by Article 280 (1) of the 1992 Constitution, tasked to make inter alia, a “… full, faithful and impartial inquiry…”
Thus the adverse findings which may very well have been supportable from the documentary evidence, are tainted (as not being “fair and reasonable”, or arrived at in compliance with legal requirements (Rule 8 of CI 65)), for failure to give the appellant (the subject of the said findings), a fair hearing.
It is important to emphasize, that what underpins our jurisprudence as a common law jurisdiction - that no man be condemned before he is heard, be upheld at all times, in all circumstances, and for all persons. We are reinforced in our opinion, relying on the dictum of Bamford-Addo JSC (citing with approval the dictum of Lord Wright in General Medical Council v Spackman  AC 627 at 644), in Republic v Committee of Inquiry into Nungua Traditional Affairs; Ex parte Odai IV and Ors. [1996-97] SCGLR 401 at 414:“A decision made in breach of the rules of natural justice would be quashed even if made correctly”.
It is for this reason that the said findings, tainted for lack of procedural regularity cannot be made to stand.
Our expressed opinion that the appellant was denied a fair hearing disables us from going into the merits of the Sole Commissioner’s findings which are contained in the second ground of appeal and its many sub-heads, for to do so would be to give the findings the validity that they lack for procedural irregularity.
Even so it will be remiss of us to let pass the opportunity to comment on two matters of procedure, that are to be deprecated: We cannot help but berate the appellant for setting out Ground 2 vi, so obviously incompetent, as a ground of appeal. In Ground 2 vi, the appellant argues that the recommendation of the Sole Commissioner for the Supreme Court in line with its review jurisdiction, to recall the money paid to the Appellant with interest was an error of law and calls upon us to set same aside for that reason. He argues that the matter that was before the Supreme Court was not the same before the Sole Commissioner or before us, and that it was untenable for the Sole Commissioner to make that recommendation, and to add in that recommendation that the money be recalled with interest.
But the recommendation of the Sole Commissioner, is just that: a recommendation, and ought not to have been made the subject of an appeal to this court. The jurisdiction of this court to entertain appeals from the findings of the Sole Commissioner is provided in Article 280 (2) of the 1992 Constitution which reads: “Where a commission of inquiry makes an adverse finding against any person, the report of the commission of inquiry shall, for the purposes of this Constitution, be deemed to be the judgment of the High Court; and accordingly, an appeal shall lie as of right from the finding of the commission to the Court of Appeal (our emphases)”. Thus it was improper to set it down as a ground of appeal and it must be discountenanced.
Our other issue is with regard to the last ground which complains that the Sole Commissioner “erred in fact and in law when he found that the bank accounts of the wife of the Chief State Attorney Mrs. Nerquaye Tetteh was later found by EOCO to have ballooned by the payment into it of the sum of GH¢ 400,000 by the appellant after the deal had become successful.”
The attempt to get this court to make pronouncements on adverse findings made against Mr. and Mrs. Nerquaye-Tetteh (and there were many such attempts) was improper, and must not only be rejected, but must also be censured. As aforesaid, Article 280(2) vests the right of appeal in any person against whom an adverse finding has been made by a commission of inquiry. In this appeal, neither Samuel Nerquaye-Tetteh nor his wife Mrs. Nerquaye Tetteh was an appellant. We find that while the instant ground, if it had been concerned with findings against the appellant, ought to have been argued along the lines of whether or not there was evidence to support the finding of a “deal” between the appellant and the Chief State Attorney that resulted in the judgment debt, the appellant’s arguments were skewed against the finding relating to the increased money in the account of Mrs. Nerquaye Tetteh rather than the inference drawn from it by the Sole Commissioner that it was as a result of a “deal”. Thus it is apparent that the said ground was solely for the benefit of the said couple, and this court must not be drawn into commenting on findings which are adverse not to the appellant, but to other persons who have not themselves appealed the said finding. In our judgment, the court ought not to have been drawn into a maelstrom which the said persons were themselves unwilling to navigate.
To recapitulate, the appeal has been found to have merit as the Sole Commissioner denied the appellant a fair hearing when he embarked on his exercise to investigate the circumstances of the claim for financial engineering, and the judgment debt paid to the appellant, and made adverse findings against him without affording him the opportunity of telling his side of the story. As aforesaid, this is not a judgment on the merits of the matter regarding the appropriateness or otherwise of the findings having regard to the evidence.
The appeal succeeds in consequence.
Accordingly reliefs (i) and (ii) sought in this appeal are hereby granted. Reliefs (iii) and (iv) are hereby refused.
More particularly, it is hereby ordered in line with reliefs (i) and (ii) granted, that the findings of the Sole Commissioner against the appellant be set aside for breach of the audi alteram partem rule of natural justice;
We also order that the findings pertaining to the appellant be expunged from the White Paper dated 18th November 2015 and the Report of the Sole Commissioner forthwith.
No order as to costs.
MABEL M. AGYEMANG
(JUSTICE OF THE APPEAL COURT)
I have read the lead judgment of my able sister, Her Ladyship Mabel Agyemang, and am in total agreement with the conclusions and the legal position crisply stated therein.
The cases of Woyome has been of public notoriety and no doubt excites varied comments, indeed even tension in certain sections of the Ghanaian public. The Sole Commissioner hit the nail right on the head when he stated at page 1426 of his report as follows
“This case appears to be the most notorious of all the judgment debt cases that the commission was tasked to look into. As has been recounted elsewhere in the report, this commission was inaugurated by the President mostly because of the tension created in the country as a result of the payment made to the plaintiff in this case, inter alia, tagged as judgment debts”.
By Article 125 of our 1992 Constitution justice emanates from the people but shall be administered by the judiciary which shall be independent and subject to only the constitution. One need not go into the constitution to convince itself that worries and tension in the public cannot be part of the administration of justice unless it is in tune with our current democratic credentials, the constitution and laws emanating therefrom. It is from this perspective that the judiciary operates and in this case before us we proceed in that tune.
Before I give my concurring opinion it needs to be clarified what exactly is before us lest some members of the public fall into further confusion in respect of the Woyome cases.
In the review judgment of the Supreme Court Amidu No. 3 vrs Attorney General, Waterville Holdings Ltd & Woyome (No 2) reported in Supreme Court Ghana Law Report (2013-2014) page 606 at 653 His Lordship Jones Dotse has this to say in respect of the pending cases of Woyome before the courts.
“ The review application in our opinion is an opportunity for the Supreme Court to level up the playing field and give one harmonious judgment for all the persons connected with this 26th April 2006 CAN 2008 Stadia Agreements and other related matters to know their positions and bring everything to a closure. Thirdly it must be noted that the Supreme Court is the court of last resort for all. Therefore the Supreme Court must not only ensure that there is substantial justice for all, but see to it that it is applied to all. The tendency where state resources are allowed to be dissipated must be brought to an end”.
The Supreme Court in this Amidu No 3 review case, as stated by His Lordship Dotse, did bring to an end all the varied claims and counterclaims in respect of the cases involving Woyome, Waterville and all other companies related thereto. By this judgment the order by the Supreme Court that all monies paid to Woyome and the other companies involved in the stadia contract which were hauled before the Supreme Court be refunded to the state, stand forever. It is a final order made by the topmost court of the land. It is those monies that the Supreme Court processes have been mounted to retrieve from Woyome. This court has no jurisdiction to vary that order and indeed the appellants before this court is not seeking to do any such thing in this court. Let this explanation be to the benefit of the uninitiated in the law.
At page 647 of the report His Lordship Jones Dotse continued
“In this court we are only called upon to review our decision on the ordinary bench. Our decision in this review case will be without prejudice to any decision that may be given in the cases pending in the High Court, especially in the criminal prosecution that the third respondent is facing. However, if our decision in this review application leads to favourable decisions for the first respondent Attorney General in the civil and criminal prosecution, then so be it”
The civil cases were indeed swallowed by the Supreme Court review decision mentioned above but the criminal prosecution continued to this Court of Appeal and, as it were, the appellant Woyome was acquitted and discharged of the charges levelled against him. No appeal was lodged against the Court of Appeal decision in the criminal case bringing that also to a close.
So ended all the civil cases and any criminal cases in this Woyome cases.
What is before us now is another matter arising from the Commission of enquiry established under Constitutional Instrument (C.I) 79 wherein the sole commissioner made adverse findings against (Woyome) the appellant. It is these findings of fraud and deceit made against him that the appellant is challenging on appeal in this court. He has several other grounds of appeal but we find critical to examine the first ground which accuses the sole commissioner for having breached the audi alteram partem rule viz failing to give him a hearing before crucifixion. In appellant’s own words the ground of appeal is stated as follows
“That the learned sole commissioner breached the rules of natural justice when he failed to give the appellant a hearing before making his findings and decision against him”.
In the very basic lay man’s language he appellant is saying that “ sole commissioner you have not listened to me throughout your whole sitting why do you say am fraudulent and deceitful? Court of Appeal look at this matter and set aside all he has said against me because he did not listen to me”.
The Sole Commissioner appears to have an answer to this complain of the appellant. He stated at page1427of the record of appeal ie page 17of the report under the heading,
THE COMMISSIONER’S MANDATE VIS-A-VIZ WOYOME.
“Two separate but intertwined aspect of the Woyome payment were before the courts, viz, the High Court and the Supreme Court for determination. These were aside of the investigations conducted into the whole affairs by EOCO, at the time this commission was tasked to go into all judgment debts against the state. This commission therefore did not find it necessary to invite Alfred Agbesi Woyome to appear personally before it to testify on the payments made to him as the main issue was sub-judice
However the commission requested from Albert Agbesi Woyome through his legal counsel Mr. Osafo Buabeng, the Economic and Organizes Crime Office, and the Chief Registrar of the High Court, Accra, all the relevant documents pertaining to the payments of the over GH¢51 million to Mr. Woyome, which has become known as the WOYOME SCANDAL.
The commission’s findings and conclusions were on this Woyome case were therefore based on unquestionable documentary evidence obtained from all the players in the game, thus rendering it otiose to invite Alfred Woyome personally for any further explanation.
In fact EOCO’S report was not charitable to the key actors in the whole game which included Alfred Woyome and some staff of the Attorney General’s Department and the Ministry of Finance and Economic Planning particularly Messrs. Amuel Neequaye Tetteh and Paul Asimenu”.
Further at page 1441of the report under the heading
WHY THE COMMISSION FAILED TO INVITE ALFRED AGBESI WOYOME TO PERSONALLY APPEAR BEFORE IT
The commission stated:
“This commission did not find it necessary to call Alfred Agbesi Woyome personally as a witness due to the pendency of the fresh action the Attorney General had initiated in the High Court to have its previous judgment set aside. However, Alfred Agbesi Woyome through his legal counsel made available to the commission upon request, copious documents which he allegedly supported his case.
The commission not being a trial court but a fact finding body did not want to subvert the authority of the trial court which was handling the case in question. The commission therefore came to the conclusion from the facts gathered from official documents received from the trial court, Alfred Agbesi Woyome himself, the Attorney General and then the office of the EOCO”.
So we have two main reasons why the commissioner did not call the appellant. They are that Woyome had cases that were sub-judice, pending before the courts and that the commission had unquestionable documentary evidence obtained from all the players in the game.
Submitting on this ground of appeal challenging the findings on grounds of breach of the audi alteram partem rule, counsel for the appellant submitted that the commission by a letter dated the 19thMarch 2013 asked for documentation from the appellant which they gave out but indicated that the appellant will appear before the commission after the cases involving him in the courts were disposed of. It is the case of the appellant that the commission was selective in the documentation used because they have evidence the commission made no request to the court for any documentation. Neither did it contact the police C.I.D which also investigated the case. On a charge of fraud and causing financial loss to the state, the appellant argued that the Court of Appeal found no such fraud or causing financial loss to the state. The state also entered nolleprosequito the charges against NeequayeTetteh and Gifty NeequayeTetteh. Appellant’s submission is that if the commission had had access to these documentations it would not have made such adverse findings against him.
To the commissions conclusion that it had all the relevant documents pertaining to the payment of the 51m cedis to the appellant and that there were unquestionable documentary evidence obtained from all the players in the game to that effect, and thus rendering it otiose to invite him personally for any further explanation, counsel submitted that that stance of the commissioner did not only breach the natural justice rule but also breached rule 8(2) by not inviting him to submit a statement. His submission continued that if the commission had invited the appellant to appear before it, appellant would have had the opportunity to explain the so called copious documents from the players of the game that formed the adverse findings against him and that would have assisted the commission avoid most of the misstatements in the report. Counsel argued that out of the 341 witnesses that appeared before the commission, not even one testified in relation to the case of the appellant reviewed by the commission. Just reading the documentation without the explanation of the appellant of the content and import was what misled the commission in its findings it made against the appellant. Counsel cited cases like Aboagye vrs Ghana Commercial Bank Ltd (2001-2002)SCGLR 806, Awuni vrs West African Exam Council (2003-2004)SCGLR 471 and Justice Awuku Sao vrs Ghana Supply Company Ltd (2009) SCGLR 710 all of which demanded strict adherence to this natural justice rule. Counsel concluded.
Counsel for the respondent, on the other hand, maintained that there was no breach of natural justice. To her there was no such breach since the appellant was given the opportunity to present documents in support of his case. It is counsel’s argument that there cannot be complaint of breach of the rule of natural justice only because the party was not personally invited to appear. She contended that in certain circumstances opportunity granted for a hearing could be inferred from documentations presented by the party under enquiry. Since the appellant was given the opportunity to present his documents, which he did, then he would be deemed as having participated in the commissions hearing. In any case, counsel asked, the appellant was aware of the commissions sitting and could have appeared before it to explain his documents if he wanted to, instead of expecting the commission with limited time, to invite him why didn’t he? He failed and cannot now complain of not having been given a hearing. She relied on the case of Boye-Doe vrs Teye and Another (1997-98)1GLR 997.
The foregoing are the brief submissions. Which of these submissions can be sustained within the light of the constitutional and statutory provisions that govern commission of enquiries? I will reproduce the relevant laws within which the sole commissioner was to operate.
Article 279 of the 1992 constitution provides
(1) A commission of enquiry shall have the powers, rights and privileges of a High Court or a Justice of the High Court at a trial in respect of
a. Enforcing the attendance of witnesses and examining them on oath affirmation or otherwise
b. Compelling the production of documents and the issue of commission or request to examine witnesses abroad
Article 280 states:
(1) A commission of inquiry shall
a. Make a full, faithful and impartial inquiry into any matter specified in the instrument of appointment;
b. Report in writing the result of the inquiry; and
c. Furnish in the report the reasons leading to the conclusions stated in the report
(2) Where a commission of inquiry makes an adverse finding against any person, the report of the commission of inquiry shall, for the purposes of this Constitution, be deemed to be the judgment of the High Court; and accordingly, an appeal shall lie as of right from the finding of the Commission to the Court of Appeal.
Then Article 281(1) of the constitution provides
281.(1) Except as may be otherwise ordered by the commission in the interest of public morality, public safety or public order, the proceedings of a commission on inquiry shall be held in public.
(2) Subject to the provisions of this Chapter, the Rules of Court Committee established under article 157 of this Constitution shall, by constitutional instrument, make rules regulating the practice and procedure of all commissions on inquiry and for appeals from commissions of inquiry.
Article 282(1) also states:
Any person whose conduct is the subject of inquiry by a commission of inquiry, or who may, in any way be implicated or concerned in the matter under inquiry, is entitled to be represented by a lawyer at the inquiry; and any other person who may consider it desirable that he should be represented by a lawyer shall be allowed to be so represented.
(2) A person referred to in clause (1) of this article may also be assisted by such other expert as may be reasonably necessary for the purpose of protecting his interests at the inquiry.
The C.I 65 Commission of Enquiry Rules which was born out of Article 281(2) providing the procedures of a commission of enquiry also provide in its regulation 8as follows:
“8.(1) the lawyer for the commission shall.
a. Within three weeks after the appointment of the commission, or
b. At any time during the proceedings of the Commission, as is appropriate, serve a notice to appear before the Commission and give evidence to a person
i. Whose conduct is the subject of the inquiry, or
ii. Who has an interest, personal or otherwise, in the inquiry, or
iii. Who the members of the Commission consider should appear before the Commission to give evidence.
(2) The notice shall
(a) include a statement of the reasons for the invitation and the questions which the person invited is likely to be required to answer;
(b) indicate clearly the place where and the time at which or period within which that person is required to attend the inquiry;
(c) state, in accordance with article 282 of the Constitution, the right of that person
i. To be represented by a lawyer of that person’s choice, and
ii. To be assisted by an expert as is reasonably necessary for the purpose of protecting that person’s interest;
(d) inform the person invited of the requirement to submit
i. a statement of that person’s case
ii. the records and documents which that person intends to rely on, and
iii. The names, addresses and any other particulars of witnesses, who that person intends to call to support that person’s case, and
(e) require the person invited to state the name, address and any other particulars of that person’s lawyer to enable future communication to be sent to that lawyer”.
Little effort is needed in concluding from these provisions that a person whose conduct is the subject of enquiry (C.I 65 refer to such person as target person) or who may be implicated or concerned in the enquiry needs to be confronted with the bases of the evidence for a decision to be made by the commissioner as to the culpability of such target person. Elaborate provisions that should guide the procedures at the commission has been provided by the C.I 65. It is difficult to find from these provisions that documents submitted to the commissioner in the circumstances of this case could be sufficient to avoid viva voce hearing of the applicant before any adverse findings could be made.
It is important to note that the sole commissioner appreciated the right of a hearing to a target person, in this case the appellant, but formed the opinion that the commission had (1) sufficient materials for a decision and (2) there were court cases concerning the appellant and therefore he could proceed and in fact did proceed to conclude the sitting of the commission making adverse findings against the appellant. This is where the appellant has a problem with the sole commissioner. And we think the appellant has a more than genuine grievance. Whilst not ruling out the possibility of a commission having sufficient information to draw conclusion without confronting the accuser, such situations in our particular constitutional environment should be resorted to, if at all, rarely and in very clear situations. I am convinced this instant case before us is not such a case. As disclosed in the record of appeal the commission did ask the appellant to submit all documentation he had in respect of which he made the claim against the government of Ghana and he did. Did the appellant submit these documents to the commission because he believed he was fraudulent and was not entitled to the payments made to him and therefore needed no appearance? Surely not. From the record of appeal, the documentations he submitted to the commission were the same documents he has been parading in all the courts, believing he was not fraudulent and was entitled to his claim. Therefore when the commission, after examining the documents was convinced the appellant was not entitled to the amount claimed and paid to him and that the payment was fraudulent, it is my respectful view that the appellant should have been invited and confronted with the documents that formed the commissioner’s conviction of fraud and deceit, particularly when other documents were used which did not come from the appellant. There was the EOCO report which by statute was an investigation report. Here again my respectful view is that the appellant had the right to know the EOCO report and offer his explanation to this report for the consideration of the commission, bearing in mind that the EOCO report was not a final report but subject to the scrutiny of the courts at any appropriate time.
At page 21 of his report (vol3), page 1431 of the record of proceedings the sole commissioner posed this germane question, which probably convinced him of the fraud of the appellant. The question in substance was like this -If the appellant’s 2% claim he made against the government added to that of Waterville came to E32, 000,000, as the appellant pleaded before the court, then how come his 2% claim of this amount came to E22,129,501.74 which the then Attorney General ordered the finance ministry to pay?-I think this is a question which the commissioner should have confronted the appellant with in a hearing proceedings.
At a certain point reading of the record of appeal I noticed the sole commissioner made reference to the case of Martin Alamisi Amidu vrs The Attorney General 2. Waterville Holdings Ltd 3. Alfred Woyome and the reviewed decision in this case. If these cases made allusion and concluded fraud and deceit of the appellant then all, including this court, will be bound by that finding, the Supreme Court being the final court of the land. And the sole commissioner would not have been censored for concluding fraud against the appellant. But the Supreme Court made no such findings. The Supreme Court simply kept within its path, actualized Article 181 and negatived all payments to these companies, including appellants claim, whose contract did not face parliamentary scrutiny. The sole commissioner could therefore not have sought shelter under any of these Supreme Court judgments when he denied the appellant a hearing and made adverse findings of fraud and deceit against the appellant.
It is for the foregoing reasons I support the conclusion of the lead judgment.
The appellant is asking that if his appeal is upheld the following orders should be made against the respondent
1. An order to set aside the findings of the sole commissioner against the appellant for breach of the rules of natural justice.
2. An order directed at the respondent to expunge from the white paper dated18th November 2015 and the report of the sole commissioner the findings and decision pertaining to the appellant
3. An order directed at the respondent to expunge from all the internet sites, internet search engines such as google, yahoo etc and other media outlets any mention of the appellant in the white paper and the report of the sole commissioner
4. An order directed at the respondent to pay the solicitor’s fees and other legal costs of the appellant in this matter
Am in agreement with the orders made in the lead judgment by my sister Her Ladyship Mabel Agyemang and whole heartedly adopt them as my own in the support opinion.
JUSTICE VICTOR OFOE
(JUSTICE OF THE APPEAL COURT)
DZAMEFE, J. A. I agree SENYO DZAMEFE
(JUSTICE OF THE APPEAL COURT)