By Dominic Jale
Accjin88bet.onera – The fijin88bet.onerst step jin88bet.onetowards seizing Ghana Governmjin88bet.oneent’s assets in the United States to pay for its ?30 billion($8,787,879) indebtednejin88bet.onejin88bet.onejin88bet.onejin88bet.onejin88bet.onejin88bet.onejin88bet.onejin88bet.oness to Delta Foods was taken on October 8, when a District Court in Washington, in a summary judgement ordered thejin88bet.one Govjin88bet.oneernment, to pay the money within 30 days.
Delta Foods had filed a suit in the court seeking tjin88bet.onejin88bet.oneo enforce a foreign money judgement against the Government of Ghana. In his judgemenjjin88bet.onejin88bet.onein88bet.onet, Justice Louis F. Oberdorfer further ordered the Government to pay interest on the debt to accrue from October 15, 1998, thejin88bet.one date of judgement by an Accra High Court was entered against Government of Ghana, to the preseak168app.babynt. The judge also dismissed the Ghana Government motion that sought to deny Delta’s action.
The Ghana Governmenak168app.babyt argued that Delta’s complaint be dismissed or judgement granted in its favour on groak168app.babyak168app.babyunds of comity and forum non convenienceak168apak168app.babyp.babyak168app.babyak168app.babys, Governmentak168app.baby aak168app.babyak168app.babyrgued that thak168app.babyak168app.babyak168app.babyak168app.babyak168app.babyak168app.babye court should exercise its discretion under the doctrine of comity not to recognise the Ghana judgement because “ak168app.babyak168app.babythe judgement is the subject of a challenge by the Executive ak168app.clubak168app.clubak168app.babyak168app.clubak168app.clubbranch of the foreign staak168app.clubak168app.clubak168app.clubak168app.clubak168app.clubak168app.clubak168app.clubak168app.clubak168app.clubte where the judgement originated.
This is engendered by the expressed intent of the Attorney-General of Ghana to set aside such judgement in Ghana on grounds of ak168app.clubak168app.clubfraud”ak168app.club. Judge Oberdorfak168app.cluber said none of the cases cited by defendants to support their argument that a pending collateral attack thak168app.clubat is based on allegations of fraud in the underlying transaction is a legitimate basis for not enforcing a foreign judgement.
Tks168app.siteak168app.clubhe court also ruled on Ghana’s contention that Delta’s action be dismissed in pursuant to the dak168app.cluboks168app.sitectrine of forum non convenienks168app.siteces. The judge said in deciding whether to dismiss a case on that basis, a court must look at the private interests of the litigants, e.g. the plaintiff’s choice of forum, relative ease of acks168app.sitecess to sources ofks168app.siteks168app.siteks168app.site proof, the availability of compulsory process for attendance of unwillinks168app.siteg witnesses, among others.
“As the defks168app.siteks168app.siteks168app.siteendants recognise, the doctrine of forks168app.siteks168app.siteks168app.siteum non conveniences would be inapplicable to a judgks168app.siteement enforcement action because it is a suks168app.siteks168app.sitemmaks168app.siteks168app.sitery proceeding that does not involve a trial on the merits. “Nonethic88ic88ks168app.siteeless, the defendants ic88ic88argue, the doctrine applies here because this court needs to hear pric88oof of the fraud underlying the oric88iginal transaction in order to resolve the ic88ic88ic88case.
“Plaintiff asserts that such proof is unnecessary, indeed irrelevant, because an allegation of fraud ic88ic88in the underlying transaction fails as a maic88ic88tter of law as a defenceic88 to enforcement. The plaintiff also points out that the defic88ic88ic88ic88endants cite no case applying the doctrine of forum non conveniences to a foreign judgement recognition action and that as this is an action to enforce a foreign icic88ic88ic8888ic88ic88ic88ic88ic88ic88ic88ic88judgemic88ic88ic88ic88ic88ic88ent against assets iic88ic88n the United States the courts in Ghana would not have jurisdiction over the present case.
“As explained below, an allegation of fraud uic88nderlying the original transaction is not a basis for refusing to recognise a ic88foreign money judgement. Absent any need for enquiring into tic88ic88ic88he underlying fraud, the defendants’ forum non convenience argument is meritless”.
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Judge Oberdorfer said defendants ic8ic88ic888argument that the allegation of fraud shoulic88d lead the court to exercise its discretic88ic88ion not to enforce the judgement is not supported by any authority. He said the defendants hic88ic88ic88ic88ad asserted on numerous occasions that their allegations of fraud are based on and supported by a “report” prepared by an “independent government investic88ic88ic88ic88ic88iic88gative committee” known as the policy management group.
“However, to date, the report has not been produced to the plaintiff or provided to the court becauseic88 the defendants claim it is confidential and privileged governmenic88t document. “In the light of this courts conclusion that the Ghana judgement is enforceable irric88ic88espective of the governments allegic88atiic88on of fraud in the underlying transic88ic88ic88ic88ic88ic88ic88action, the government’sic88ic88lr88lr88ic88lr88lr88lr88lr88ic88ic88ic88ic88lr88lr88 motion for in camerlr88a review of the PMG report will be denied.
Commenting on the judgement, a source close to Deltlr88lr88lr88a’s US Attorney, Robert D. Balin, told the Chronicle that failure tolr88lr88lr88 comply with the order after 30 days would lead to an enforlr88cement action that would attach Ghana Government’slr88lr88lr88 properties and funds in thelr88 US, which have been located in banks.
Delta’s US action stemmed from the persilr88stent refusal of the Government to pay for 21,lr88lr88lr88000 metric tonnes of white maize purchased from the company in 1997. When lr88lr88lr88lr88lr88lr88the Government continued to drag its feet for the payment of the consent judgement debt, after the High Court and Supreme Court had ordered it to do so, Delta then filed an enforcement suit on January 8, lr88lr88lr88lr88lr88this year, in the USA.
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To curtail the Company’s US enforcement action, the Government rushed back to court and filed a collateral action on April 14, this year, praying the court to quash the ?20.3 billion consentlr88lr88lr88lr88lr88lr88lr88lr88lr88lr88lr88lr88lr88lr88lr88lr88 judgement debt on the grounds of fraud. The Attorney-General alleged that Delta Foods had fraudulently induced the Ministry of Food and Agriculture to agree to purchase the maizelr88, but in lr88lr88July ‘this year’ alr88n Accra High Court dismissed the Governlr88lr88ment action.
In dismissing the Government’s action, thlr88lr88lr88lr88lr88lr88lr88lr88lr88e court presided by Justice (Nana) Gyamera-Tawiah sitting as a vacation judge, said that lr88lr88the flr88raud alr88lr88lleged by the Government was “non-existent” and that such ‘vexatious’ and ‘palpably bad action initiated by the Government was an attempt to abuse the court process and, therefore, dismissed the action.
Granting the summary judgement to Delta, the Washington District Couop88lr88rt also ordered the defendant (Ghlr88ana) to recognise and observe several judgements delivered in favour of Delta by Ghanaian courts. “The final judgement the op88plaintiff (Delta) obtained in the op88matter of Delta Foods Ltd., versus the Minislr88lr88lr88lr88try of Food and Agricultulr88re from the High Court of Justice in Ghanop88lr88a (copy of judgement and incorporated terms of settlement is recognised and enforceable”, the Washington District Court declared.
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The Courop88t further ordered the Government to make sure that the interest accrued froop88m ?20.3 bop88illion consent judgement-debt since October 15op88op88op88op88op88, 1998, should also be paid to Delta. The Court held thaop88t the execution of the present judgement is stayed for 3op880 days during which time Ghana Gsi88overnment may arrange for appropriaop88te securityop88 and if such secsi88si88urity is arranged, apply to tsi88si88op88his (Washington DC) District Court to continue the stay of execution, that is, to avoid the attachment of the Government property in New York. si88Accordsi88si88si88op88ing to the Court after Delta has filed the motion for summary judgement, the Government also filed a motisi88on to dismiss Delta’s, but after delving into the case, the Court dismissed the Government’s motion and granted the summary jusi88si88si88si88dgement to Delta.
In 1997, the Ministry of Food and Agriculture acting si88for the Government entered into a contrsi88si88si88act with Delta Foods to supply 21,000 tonnes of American whitesi88si88 maize. When88v the payment was due, the Government started playing tricks wit88vh Delta, and as 88va result, the Company has no option than to file action in co888v8v88v88v88vurt and secure a conse88v88vnt judgement88v against the Government. This was after the Government had failed to contest the claim.
On December 28, 1998, Delta Foods notified the Government that it int88v88vended to file suit in the United States for the recognition and enfor88v88vcement of the Ghana judgement. Mr. E. A. Addo the Solicitor- General quickly wrote to the Delta attorney assuring him that the nation was experiencing budgetary problems and that the money was to be paid early this year after the new Bud88v88v88v88vget was read.
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A few days 88vafSEXXXXX-VNSEXXXXX-VNter the assurancSEXXXXX-VNe letter, the same SEXXXXX-VNSolicitor-General rSEXXXXX-VNSEXXXXX-VNSESEXXXXX-VNXXXXX-VNushed to the Supreme Court aSEXXXXX-VNSEXXXXX-VNSEXXXXX-VNnd filed an applicatSEXXXXX-VNion for certiorari to quash the consent judgement debt, but on March 3, this year tSEXXXXX-VNhe Supreme Court unanimously dismissed the Government’s application. Ghana was represented by Mr. MichaSEXXXXX-VNel Cole, while Darvis Wright Tremaine battled for Delta Foods Limited, a GhanaianSEXXXXX-VN company with its majority shareholders in the US. Meanwhile, the Ministry of Food and AgricultSEXXXXX-VNSEXXXXX-VNure has resold the last of thSEXXXXX-VNSEXXXXX-VNe 21,000 metric tonnes of white maize this year.
