By. Dr. Samuel Adjei Sarfo
To gauge the commitment of any government to rebuilding a decrepit nation, all that one needs to do is to quantify its actions in its first hundred days. Same with a government that is bent on the exploitation of the people; it does not take too long to determine the true shades of its colors. In the latter context, the wholesale abrogation of contracts by the NDC government, coupled with its willing payments of huge judgment debts to its cronies, ought to have been sufficient adumbration of its unprecedented ineptitude and crass corruption. But even here, the most pessimistic and cynical could not have predicted the gargantuan scope of the problem, since its length and breadth are both uncanny and other-worldly.
And regarding what kind of legal counsel is given to the government in its breach of contract laws and ready payments of judgement debts, the matter is more evidence of the stark determination of the government to rape the people’s treasury, than any genuine administrative mistake made in performing the business of governance. Remember that the government is supposed to have available to it the very best of the legal luminaries in the country, and these lawyers are ethically obligated to shield the government and the people from this kind of legal repercussions to which the government has been lately exposed. For it is no hyperbole to postulate that, in recent years, no government in the world has paid more per capita judgment debts than the Republic of Ghana. And this phenomenon has been particularly unique to the NDC government!
Therefore in the instance where a government is supposed to have the best lawyers and yet succumbs to these massive amounts in judgment debts, the conclusion will often point to the unnatural ineptitude of these government lawyers, or their implicit complicity in the legal loss to the government and their consequent benefit whenever the government is hit with a judgment debt. And given the available records, one is bound to argue the latter to be the case. There are those who have always held on to the rather strange proposition that the government actually encourages some citizens to pursue civil damages against it, and then steps back from its fiduciary obligation to defend the nation, thereby exposing the country to huge judgments debt from which government officials take their huge kickbacks. And given all that have gone before us, there could be some truth in this proposition no matter how fantastical. Remember Mr. Barton Oduro and many others took their cuts of the Woyome pay-off after defending the legality of the suit.
And indeed, almost all the cases for which this government has paid out these judgment debts are spurious, and any government with even an average team of counsels ought to have successfully disposed of them to the advantage of the government. In fact one of the available defenses for all civil cases such as the one confronting the government is what is known as the statute of limitation. This simply means the amount of time in which a potential suit accrues, and during which time space the plaintiff must bring his or her cause of action or be barred from ever pursuing it. And all countries, including Ghana, have their statutes of limitation crafted to protect itself against vexatious plaintiffs that sleep on their rights and commit what we call larches in legal parlance. In Ghana’s case, the limitation spans from three to six years depending on the nature of the civil suit. For example, a suit on sworn accounts could be as little as two years whereas that on a deceased’s estate could be as little as three years. Now, the defense of statutes of limitation are what we call affirmative defenses which must be initially asserted as soon as any person responds to a suit. If you don’t timely make it, you lose it.
And given that most of the cases brought against the government accrued in suit for more than six years, the question to ask is, why didn’t the government side raise the defenses of the statute of limitation? For example whatever decision taken against whatever contract the Rawlingses claimed to have had against the government occurred during the first year of the Kufuor government in the year 2001. How is it the case that all through Kufuor’s administration, Nana Konadu Agyemang-Rawlings could not bring her suit? It was probably because she was waiting in the shadows for a friendly government in place which will be amenable to her baseless suit. Luckily for her, she had her day in 2008 when this government backed off from defending the country and surreptitiously paid her four million dollars for a so-called contract to loan her just over two million dollars.
Same argument could be made for the Woyome case although on different grounds of incompetent legal representation. In this case, the accused who had no contract whatsoever with the Government, claimed that, as part of the financial engineering services rendered, he had managed to arrange a total amount of €1,106 470,587.00 for the Government of Ghana through the Bank Austria Creditanstalk, out of which amount he claimed he was entitled to 2% as financial engineering fees.
Investigations however revealed that, there were no such funds made available for the benefit of the Country by Bank Austria as claimed by the accused. Investigations further revealed that, the accused had no contract whatsoever with the Government to provide any services. That the only arrangement on financial engineering services he had, was with Waterville Holdings Ltd. which services had been fully paid for and acknowledged by him in a termination agreement. Meanwhile, based on these fraudulent misrepresentations, the accused got the government of Ghana to pay him a total amount of GHC51, 283,480.59, thereby willfully and fraudulently causing huge financial losses to the State. And in fact, as later events unfolded, the government was complicit in facilitating its own defeat and payment of the judgment debt to Woyome. As previously stated, many government officials had their share of the loot and kept quiet or openly defended it.
Now this Bankswitch debt of 197 million cedis, together with many numerous judgments debts now under wraps, will only reveal a pattern in which the government had the ability to invoke the statute of limitation and many other defenses but failed to perform its fiduciary duties.
But with this government, the harm to the nation is already done, and will continue to be done. This is because the judgment debt appears to be a recognized way to make money off the people. This may even inform the decision to appoint the sole commissioner for judgment debt to the Supreme Court while no successor has been named for him nor his report published nor utilized. What will happen to any further investigation into the fraudulent judgment debts still bedeviling the country? Nothing.
But for any future government seriously intent on plugging the loopholes in judgment debts, the statute of limitation is a prophylactic legal remedy to apply. We must first begin by amending that statute and shortening it to a maximum of three years as it applies in the USA and Zimbabwe. If a person or entity has a suit against the government and is serious about prosecuting such, this time frame is reasonable enough, and might save both plaintiffs and defenders insofar as it prompts both sides not to sleep on their claims or defenses.
The relentless appeal for a higher level decision on judgement award is also another way to wear down plaintiffs since their own resources are often lesser than the government. But this government also failed to appeal for a review of any of the judgment awards and demonstrated much more alacrity to pay up than to fight out. Otherwise who can tell me how come any judgment debt must by all means be paid at all? I can understand that the loan obligations of countries are tied down to the very credibility of their sovereignty, but a judgment debt? Come on! No judgment debt obligation could be so important that it must by all means be paid to the detriment of important projects. And if the government lawyers are serious about any aggressive legal defenses, there are numerous ways in which the assets of this country could be well protected against almost all such judgment debts, the least of which is that the country could declare some form of bankruptcy as we did in Kufuor’s time.
But I don’t believe any of those government lawyers are looking for ways to circumvent the judgment debts. Like Spio Garbrah, they only crack their brains on how to confront one illegality with a more pernicious other. But if the government were indeed serious, there is an armament of post-judgment motions that can easily be made to stay the punitive judgments. There is a motion to review, to set aside default judgment, or even a mandamus to a superior court against a judgment that is unfair on its face. Even under international contract laws, the expectant or consequential idea of damages is not intended to unfairly enrich a plaintiff, but to make him whole; that is to put him at the exact place he would have been had the contract been performed. But on its face, it appears now that the country is paying punitive damages from contracts from which it has not benefited in anyway. For example, very few people have asked the question as to what services were provided by Bankswitch to enable it to claim a judgement award of 197 million cedis? My guess is that we lacked the confidence to go as far as possible in the defense of the national interest and have given up too easily because it benefits some people to be that cynical and indifferent to the fate of the country.
And so all these pointers are being made upon the assumption that our government harbors any intention to extricate itself from the incessant judgment debts now bedeviling it. Or for the benefit of a future NPP government determined to salvage the country from the quagmire of judgment debts. If any government is so inclined, the way to go is to restructure the laws in limitation by shortening its duration and timely asserting it. Further, all lawsuits against the country must be viewed as a hostile act by its enemies, and aggressively fought with all the tools we would employ in fighting for our very survival. Otherwise these spurious lawsuits intentionally brought against the government will forever continue, and in the end, we the people will continue to suffer under the talons of fake judgment debts.
Samuel Adjei Sarfo, J.D., is a practicing attorney in Austin, Texas, USA. You can email him at [email protected]