Judgment debts have been a major problem and the Achilles heels of Attorneys-General in the recent past. Some dubious judgment debts like the Woyome and Isofotun Scandals had even contributed to the perception of corruption around some administrations and played a key role in their downfall.These words of the learned Chief Justice as she then was, Georgina wood C.J in the case of REPUBLIC v HIGH COURT, KUMASI EX PARTE BANK OF GHANA (REV.

0

DE-GRAFT SEFA & ORS. INTERESTED PARTY) [TLP-SC-2013-10] available at thelawplatform.online captures the sense of this appalling situation: “the time has indeed come for this court to comment on the manner in which legal representation of state and para-statal interests are handled in our law courts. The quality of legal representation of these institutions leaves much to be desired.

1

”The Law Platform chronicles the direct intervention of the immediate past Attorney-General and Minister for Justice of Ghana, Godfred Yeboah Dame, whose tenure span from 5th March, 2021 to 6th January, 2025, in the mitigation and avoidance of judgment debts.

2

It should be noted that cases for the payment of money by the State in favour of various individuals and companies for breach of contract, unlawful violation of rights, compensation for compulsory acquisition, termination of employments, etc. ran into hundreds, if not thousands of civil actions defended by the Attorney-General.

3

The records as provided herein leads to the irrefutable conclusion that, through a process of proactively responding to judgment debts entered against the State before his era and diligently defending civil claims filed against the State or already pending his era, Mr. Dame was able to avoid huge scandalous judgment debts.

4

In fact, his management of civil actions, including arbitration cases, is generally deemed by many a lawyer and stakeholders of the industry to be par excellence.<img src="

alt="WhatsApp Image 2025-01-28 at 08.41.05_099926aa.jpg"/>Pictured: Godfred Dame and his Deputy, Alfred Tuah-Yeboah and other State Attorneys outside Ghana for an International

5

Conference which was addressed by Mr. DameEXAMPLES OF HUGE DOMESTIC “JUDGMENT DEBT CASES” WHICH HAD THE TENDENCY TO SEVERELY AFFECT THE PUBLIC PURSE1.  NDK Financial Services Limited vrs. 1. Ahaman Enterprises Limited &amp; the Attorney-GeneralThe action by NDK Financial Services Limited was filed in 2008 and had gone through the hands of successive Attorneys-General.

6

All the Superior Courts of Ghana – High Court, Court of Appeal and Supreme Court had actually given judgment in favour of NDK and the Supreme Court had actually affirmed NDK’s entitlement to the payment of over GHC1.2 Billion in compound interest on a principal sum of GHC867,000 awarded as judgment debt in December, 2011.

7

The State had actually paid a total of GHC79 Million in settlement of the NDK judgment debt before Dame’s tenure as Attorney-General.On assumption of office as A-G, Godfred Dame instituted an action invoking the inherent jurisdiction of the Supreme Court for a declaration that the payments to NDK were wrong and that, the amount paid by the State should be upheld as full and final satisfaction of all claims by NDK against the State.

8

 He succeeded on the application resulting in the State being relieved of any obligation to pay to NDK Financial Services Limited the amount of over GHC1.2 Billion.2.   Heritage Imperial Limited vrs. 1. Ministry of Lands and Natural Resources 2.

9

The Attorney-GeneralIn June, 2021, three months after being appointed A-G, the attention of Godfred Dame was drawn to a radio discussion on Joy Fm which discussion was about a judgment debt of Fifteen Million, Three Hundred and Four Thousand, Seven hundred and Fourteen United States Dollars and Twenty Cents (US$15,304,714.

10

20) entered against the State by a company whose equipment had been allegedly seized for illegal mining, in July, 2020 – this was before being appointed Attorney-General.Unamused by the news, Godfred Yeboah Dame filed an application under the inherent jurisdiction of the High Court for an order setting aside the judgment of US$15,304,714.20 as&nbsp;entered without jurisdiction and offensive of Ghanaian statutes.

11

The High Court in July, 2021, upheld the Attorney-General’s application and set aside the judgment of US$15,304,714.20 entered in favour of Heritage Imperial Limited.3.   China Jieling Limited vrs.

12

The Attorney-GeneralThe company issued a writ at the High Court, Kumasi, for payment of almost One Billion United Staes Dollars (US$1,000,000) against the State for alleged termination of its contract by the erstwhile Ministry of Roads and Transport. Judgment was entered in favour of the company.&nbsp;The Attorney-General filed an application at the Supreme Court to set aside the judgment which was granted.<img

13

src="

alt="WhatsApp Image 2025-01-28 at 08.41.04_1dc10392.jpg"/>Pictured: Godfred Dame performing duties outside of the JurisdictionINTERNATIONAL ARBITRATION AND INTERNATIONAL CASESThe upsurge in international arbitration in recent times is attributed to the expansion of the Ghanaian economy, frequent insertion of arbitration clauses as the

14

dispute resolution mechanism in commercial agreements involving the Government of Ghana and the tendency of government officials to terminate or default on obligations in agreements signed with business partners.

15

The high number of arbitration claims filed against the Government of Ghana compelled the immediate past Attorney-General, Godfred Yeboah Dame, to remark at the first ever Conference on Public Sector Lawyers in Ghana envisioned and organized by him in November, 2024, that “arbitral claims filed against the Government, if not diligently managed, have the tendency to collapse the entire Ghanaian economy.

16

A single arbitral claim, if successful can bring the economy of a developing country like Ghana, to its knees”Against this background, the chronicle develops to how arbitration claims were handled between 2021 to 2025.

17

What were the outcomes of such actions? Who were the counsel or lawyers for the Government of Ghana? Our research established that, in all, there were six (6) major awards or rulings delivered in international arbitration cases involving the Government of Ghana. There was also one major civil action pursued in the domestic court of an European country against Ghana.1.   Beijing Everyway Traffic &amp; Lighting Tech. Co. Ltd. vrs.

18

The Government of Ghana (US$60 Million involved).A dispute arising from the termination of a Master Facility Agreement and Engineering, Procurement and Installation Contract (EPIC) for the planning, design, construction, supervision, operation and training for the Accra Traffic Management System.

19

The claimant filed an investor-state arbitration against Ghana under the 2013&nbsp;United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules claiming a breach of Article 4(1) of the China-Ghana Investment Treaty.

20

The Claimant argued that the decision of the Parliament of Ghana to rescind the EPIC contract with claimant, amounted to expropriation and that, Ghana had failed to observe its obligation to protect Chinese investors as required under the China-Ghana Investment Treaty.

21

Ghana, in addition to contending that the decision of Parliament to rescind the EPIC Contract with the Claimant was taken in the interests of national security, raised a number of jurisdictional objections to the competence of the tribunal in determining the claim.

22

The A-G argued that the China-Ghana Agreement limits the Tribunal’s jurisdiction to only the determination of the quantum or amount of expropriation, and not the determination of the primary issue of whether there has been expropriation in the first place. The Tribunal thus had no jurisdiction to determine whether Ghana expropriated the Claimant’s investment in terms of the Treaty.

23

Ghana further asserted that under the Constitution of Ghana, it is Ghanaian courts that have jurisdiction over the question of lawfulness of an alleged expropriation, not an arbitral tribunal.&nbsp;On 30th January, 2023, the Tribunal delivered a “final award on jurisdiction (save as to costs), upholding Ghana’s jurisdictional challenge.

24

The tribunal held that Article 10(1) of the China-Ghana Treaty cannot be read as empowering the tribunal to determine the question of entitlement of expropriation. The Tribunal noted the important qualification of the term “the amount of” prior to the terms “compensationfor expropriation” as placing clear limitations on the scope of questions which can be referred to arbitration.

25

Thus, the matters the tribunal could determine did not include the question of entitlement or determination of whether expropriation has taken place in the first place.On the issue of costs, Ghana waived its right to apply to the Tribunal for costs, taking into account the pendency of another arbitration claim between the parties.

26

Ghana’s counsel were the Attorney-General, Godfred Yeboah Dame, Deputy A-G Diana Asona-Dapaah, Solicitor-General, Helen Ziwu and other state attorneys.2.   Michelletti Company Limited vrs. Ministry of Youth and Sports.The claimant instituted arbitration proceedings against the government for its termination of EPC contracts for rehabilitation of various sports stadia in Ghana.

27

The proceedings were under the Arbitration Rules of the International Chamber of Commerce (ICC).Ghana raised an objection to the admissibility of the arbitration, contending that the claimant had failed to exhaust the dispute resolution mechanism set out in the arbitration agreement before instituting the proceedings.

28

Ghana further contended that the claim was statute barred as same was prohibited to be pursued in terms of the Limitations Act of Ghana.In an award dated 8th March, 2024, the tribunal upheld Ghana’s objections and declared that the claimant’s action is time barred and therefore all of the claimant’s reliefs are not admissible. The tribunal dismissed the entire action.Costs of US$25,000 was awarded in favour of Ghana.

29

Ghana’s counsel – The Attorney-General, Godfred Yeboah Dame, Solicitor-General, Helen Ziwu and state attorneys from the Office of the A-G.<img src="

alt="WhatsApp Image 2025-01-28 at 08.41.06_6aac9418.jpg"/>Pictured: Mr. Dame addressing an event of the International Criminal Court3.   GCNET Company Limited vrs. Republic of Ghana

30

(GHC4Billion involved) The claimant&nbsp;instituted proceedings against the Republic of Ghana under Article 18 of the Arbitration Rules of the United Nations Commission on International Trade Law of 1976.

31

The claimant claimed damages under various heads amounting to over GHC4 Billion, following the termination of its Service Agreement it had with the Government by which the company was granted the exclusive right to develop, customise, update and operate an electronic system for processing customs payment and trade documents at ports in Ghana.

32

&nbsp;Ghana rejected GCNet’s claims and invited the Tribunal to hold that the country had validly terminated the agreement between the parties, canvassing a plethora of legal arguments in the process.

33

Ghana asserted that&nbsp;the Agreement between the parties provided no scope for the application of common law principles on the measure and assessment of unliquidated damages, and that, by the Agreement, the compensation payable to GCNET should not&nbsp;exceed US$ 5.4 million.

34

After many rounds of submissions and a full trial, on 18th November, 2024, the tribunal upheld the whole of Ghana’s case and decided that Ghana had validly terminated the Agreement in accordance with its terms, and therefore the termination was lawful.

35

The tribunal found that GCNet was the “unsuccessful party in the arbitration” and that Ghana had “expended money and time in defending a claim that the Tribunal has held to be ill-founded”. It therefore ordered that GCNet to pay a total of US$2,185,983.21 in favour of Ghana as costs representing legal fees.

36

Ghana’s counsel – The Attorney-General, Godfred Yeboah Dame, Deputy A-G Diana Asona-Dapaah, Solicitor-General, Helen Ziwu and other state attorneys.<img src="

alt="WhatsApp Image 2025-01-28 at 07.43.55_24255d37.jpg"/>Pictured: The Legal team of Ghana led by Godfred Yeboah Dame in the GCNET case4.   Cassius Mining Company Limited vrs. the

37

Republic of Ghana (minimum of US$300 Million claimed).The claimant has been suing Ghana in various international arbitration fora since February 2023, seeking compensation amounting to over USD300 Million for Ghana’s refusal to extend the term of a Prospecting Licence Agreement obtained by the company which allowed it to prospect for gold.

38

The prospecting licence was issued on 28th December, 2016, after the first Mahama administration had lost power on 7th December, 2016. This prospecting licence expired in December, 2018.

39

Cassius Mining Limited instituted the proceedings under the Minerals and Mining Act of 2006 (Act 703) and applied to the international tribunal that the UNCITRAL Arbitration Rules should apply to the proceedings and that the seat of arbitration should be London, UK.

40

&nbsp;Ghana opposed the claim and asserted that firstly, the UNCITRAL Arbitration Rules were inapplicable to the proceedings since the agreement required arbitration to be conducted under the Ghana Alternative Dispute Resolution Act. Secondly, the seat of arbitration ought to be Ghana and thirdly, the Minerals and Mining Act was inapplicable to the dispute.

41

On 28th February, 2024, the tribunal whilst refusing to stay proceedings, upheld all of Ghana’s other contentions. It held in the ruling on the preliminary issues, that, Cassius Mining was not entitled to invoke the arbitration clauses in the Minerals and Mining Act, 2006 (Act 703).

42

Further, the UNCITRAL Arbitration Rules shall not apply to the arbitration and, that, the arbitration is subject to the rules of Ghana’s Alternative Dispute Resolution Act. Finally, the tribunal ruled that the seat of the arbitration shall be Ghana, and not any other foreign jurisdiction.Ghana’s counsel – The Attorney-General, Godfred Yeboah Dame, Solicitor-General Helen Ziwu and other state attorneys.

43

Cassius Mining has since proceeded to file its statement of claim in support of the arbitration. Ghana is required to file its statement of defence by September, 2025.5.   Eni Ghana Exploration and Production Limited &amp; Vitol Upstream Ghana Limited (collectively called “Claimants) instituted international arbitration proceedings against the Government of Ghana (Ghana) &amp; Ghana National Petroleum Corporation (GNPC).

44

The claimants filed an international arbitration against the Government of Ghana &amp; GNPC for a declaration that Ghana had breached their Petroleum Agreements by issuing and/or refusing to withdraw Unitisation Directives in respect of the Afina and Sankofa fields.

45

The claimants sought six (6) other reliefs including damages initially of over US$ 7Billion for losses suffered by the Claimants arising out of the alleged breaches of the Petroleum Agreement.Ghana’s resistance of the monetary compensation sought by the claimants resulted in a reduction of same to US$915 Million by the Claimants in their post-hearing brief.

46

On 8th July, 2024, the Tribunal held in a final award, that, the manner in which Ghana had issued the unitisation directives was contrary to the Petroleum Agreement. However, the tribunal proceeded to dismiss all other reliefs sought by the claimants including the entire claim for damages.

47

The Tribunal finally held that given that both parties had prevailed, with Ghana successfully resisting the financial claims by ENI/Vitol and GNPC also defending itself completely against all claims by ENI/Vitol, it “considers it fair and appropriate that each party bear its own costs.” Thus, no costs was awarded in favour of or against any of the parties to the action.Ghana’s counsel: Messrs. Foley Hoag LLP, Washington, DC.6.

48

   TULLOW Ghana Limited Vrs. Republic of Ghana.Tullow Ghana Limited alleged that the imposition by the Ghana Revenue Authority (GRA) of branch profit tax on it was in violation of the Petroleum Agreements it had signed with the Government of Ghana. In the view of Tullow, taxes payable by it were limited by the Petroleum Agreement and GRA was not entitled to levy branch profit tax on it.

49

&nbsp;The GRA asserted its right to impose branch profit tax on the company.In an award communicated on 2nd January, 2025, Tullow Ghana Limited’s position was upheld by the tribunal. It was held that Ghana was not entitled to impose branch profit tax on Tullow. Costs of £1.9Million was awarded against Ghana.Ghana’s counsel: Philipa Hopkins, KC (Essex Court Chambers), Messrs. Howard Kennedy LLP (both English law firms).  <img

50

src="

alt="WhatsApp Image 2025-01-28 at 08.35.13_86e637d6.jpg"/>7.   Messrs. Jongsbru AS Vrs. Government of Ghana (Norway Courts) – claim for about US$10Million.Even though not an arbitration dispute, this was an international case brought against the Government of Ghana in the courts of Norway. It engaged a lot of attention in the Ghanaian

51

media between 2021 and 2023.Following the decision of the Government of Ghana to resile from an agreement with the plaintiff company to purchase a building for use by Ghana as its embassy building in Oslo, Norway, the plaintiff&nbsp;sued Ghana in the Oslo District Court claiming about seventy-eight million Norwegian Kroner (equivalent of about US$10 Million) for breach of contract, loss of profits, interest and costs of litigation.

52

The Government of Ghana resisted the claim citing the absence of a valid contract between the parties as known to Ghanaian law, particularly the common law and the provisions of the Public Procurement Act of Ghana.

53

After a trial in which Ghana summoned witnesses from the Ministry of Finance and Ministry of Foreign Affairs to testify, the Oslo District Court dismissed the claim against Ghana with costs of 1 million Norwegian Kroner (approximately, US$130, 000) in favour of Ghana. An appeal by the plaintiff to the Norway Court of Appeal was also dismissed with costs of 1.5 million Norwegian Kroner (approximately US$180 000) in favour of Ghana.

54

A final appeal by the plaintiff to the Norway Supreme Court was also dismissed without a hearing by the Court on 22nd November, 2022. In total, costs of about US$310,000 was awarded in favour of Ghana for its troubles in that litigation in the courts of Norway.A quick analysis of the 6 international arbitration cases examined above shows that in all four (4) in which the A-G’s Office handled without foreign legal counsel, it succeeded in all.

55

In the other 2 in which foreign counsel were engaged, the Government lost 1 and partially succeeded in the other. We will publish in due course a brief on all international arbitration cases currently pending against the Government of Ghana. Sources of The Law Platform indicate that there are about eleven (11) international arbitration cases pending.

56

Ghana has foreign legal representation in only 1 of them, with the Office of the Attorney-General directly conducting the rest by itself.Source: The Law Platform

57