This ruling follows Ghana’s failure to fully comply with an earlier tribunal decision from the United Kingdom.

On January 26, 2021, a UK tribunal issued a Final Award, finding that Ghana breached its contractual obligations by terminating a power purchase agreement with GPGC on February 18, 2018.

Ghana had argued that the foreign power company failed to meet certain contractual conditions, leading to the contract’s termination.

However, the tribunal disagreed, awarding GPGC $134,348,661 in damages, calculated based on an Early Termination Payment formula in the purchase agreement.

The award included an interest rate of six-month USD LIBOR plus 6%, and reimbursement of GPGC’s arbitration fees and expenses totaling $3,309,877.74, with interest at three-month USD LIBOR, compounded quarterly.

Despite the ruling, Ghana only made partial payments totalling $1,897,692.40, leaving a significant outstanding balance.

After unsuccessful attempts to secure the remaining payment from Ghana, GPGC filed a case in the U.S. District Court on January 19, 2024, under the New York Convention and Chapter 2 of the Federal Arbitration Act, seeking to recover the compounding debt.

Court documents reveal that the U.S. court served Ghana with the petition on January 23, 2024, through Shirley Ayorkor Botchwey, Ghana’s Minister for Foreign Affairs and Regional Integration.

The documents were delivered in Ghana on January 29, 2024, with a signed confirmation of receipt.

However, Ghana failed to respond by the March 29, 2024 deadline and did not appear in the court proceedings.

The court determined that it had jurisdiction over the case, citing the New York Convention, which the U.S. has ratified, recognizing UK arbitral awards.

The court also noted that Ghana had expressly waived its sovereign immunity and committed to international arbitration under the power purchase agreement.

In his August 6, 2024, memorandum opinion, Chief Judge James E. Boasberg emphasized that the arbitral award between the non-U.S. parties arose out of a commercial relationship, which falls under the New York Convention.

The Convention requires that member states recognize and enforce such awards, regardless of the parties’ citizenship or domicile.

While the judge did not grant pre-judgment interest to GPGC, the court will award post-judgment interest at the rate specified in U.S. codes, adding to the financial burden on Ghana.

Source: Blessed Sogah  

This follows President Nana Akufo-Addo’s revelation on Tuesday, February 29, while delivering the State of the Nation Address (SONA).

Earlier, the A-G, Godfred Yeboah Dame reacting to the statement said the President was even magnanimous with his assertion as evidence on record, including court rulings, clearly showed that the money saved to the state in judgment debts was in excess of GH¢14 trillion.

In a detailed response, the A-G’s office in a statement signed by Mr Dame dated March 1, has shared insights on the various cases involved.

Below are the cases;

Suit No. E3/108/05 – China Jilin International Economic and Technical Cooperation Vrs. The Attorney-General.

The release said on June 2, 2014, the plaintiff obtained judgement against the State. In 2015, the State paid US$223,266 and GH₵56,827.15 towards the judgement debt. In 2022, the plaintiff resumed execution of the judgment debt which was stated as US$988,294,313 (almost 1 billion USD) and GH₵352,626,144.41.

Over GH₵400 million in the accounts of the Ministry of Finance was blocked through an order of garnishee nisi (order for payment of money) granted by the High Court, Kumasi on February 28, 2022.

Also, in Suit  No. J4/23/2014 – NDK Financial Services Ltd Vrs. Ahamaan Enterprises & The Attorney-General

The statement added that on December 21, 2011, the High Court granted judgment against the State for payment of sums claimed by the plaintiff together with interest at the rate of 6.5% per month calculated at the close of each day and payable at the end of every month from January  7, 2009, up to date of final payment.

By 2020, the judgement debt had increased to GH₵1,273,000,000, after the State had already paid GH₵79,000,000. Pursuant to an application by the A-G for an order that the judgement debt was unconscionable and that the amount paid by the State should be considered to be full satisfaction of the judgement debt, the Supreme Court in July 2021, held that the amount outstanding to be paid was only GH₵14,000.

Additionally in Suit No. RPC/345/2007 – African Automobile Ltd Vrs. Ministry of Employment & Manpower Development & The Attorney-General

On July 31, 2009, the High Court granted judgment in favour of the plaintiff and awarded simple interest on the sum claimed. On February 24, 2011, the Court of Appeal awarded interest at the rate of 10% compounded monthly on the sum claimed.

On April 26, 2021, the High Court granted an order for garnishee nisi in the sum of GH₵10,331,841,859,411.20 in favour of the plaintiff. The A-G challenged the order for garnishee nisi which led to the plaintiff drastically revising its claim to GH₵3,615,826,184,388.24 which the High Court confirmed.

The A-G said it was dissatisfied with the verdict hence on June 19, 2023, instituted a fresh action against the judgement creditor to set aside the entire judgment against the State – SUIT No. GJ/0956/23. The A-G contended that the plaintiff’s legitimate claim was in the sum of GH₵28,000 which has been paid.https://drive.google.com/file/d/1DFf48w2lJ5rIWVPoNjp_zocjEG8YvTa-/preview

Again in Cassius Mining Ltd Vrs. Government of the Republic of Ghana (International arbitration)

The Claimant on February 3, 2023, commenced international arbitration against the State for failing to extend the term of its Prospecting Licence Agreement dated December 28, 2016, and claimed compensation over US$275 million

Further in Beijing Everyway Traffic & Lighting Vrs. Government of Ghana (arbitration at the Permanent Court of Arbitration, The Hague)

The Claimant dragged the nation to the Permanent Court of Arbitration for over $60 million for breach of contract. Following an objection raised by the Attorney-General, the PCA dismissed the claim on January 30, 2023.

Also, in Suit No. C1/34/19 Heritage Imperial Ltd Vrs. Ministry 4 of Lands and Natural Resources & The Attorney-General

The plaintiff obtained judgement for US$15,304,714.20 in July 2020 for the seizure and destruction of its mining equipment. In July 2021, the High Court set aside the entire judgement for violating various statutory provisions pursuant to an application by the A-G.

Suit No. RPC/344/2007 African Automobile Ltd Vrs. Accra Metropolitan Assembly & The Attorney-General The claimant obtained judgement in 2009 and proceeded to obtain a garnishee nisi order for the sum of GH₵592,092,705,048.00 in February 2020. The Attorney-General said it commenced an action at the High Court to set aside the judgement for fraud. Pending the determination, the court has stayed the execution of the judgement.

Finally in David Akpasera & 42 Ors Vrs. The Attorney-General

An action by former members of Parliament and Ministers of State for payment of retirement benefits of over GH₵100 million was dismissed by the High Court in 2020. The Court of Appeal dismissed the appeal in May 2022.

Read the full release below:

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Mr Ablakwa has said the Attorney General, Godfred Dame Yeboah will also be summoned to answer questions on the debt.

“Our oversight role in terms of summoning these ministers and finding out why they created this, and seeing if there can even be a vote of censure, failed the last time we tried that because we did not have the two-thirds majority.

“But we will not give up, and we have already served notice that we are going to pursue this matter because this is such a colossal amount of money wasted, and people must answer questions. You can’t waste all of these resources which could have been used to build roads, hospitals, solve our water problems, and address our housing challenges for displaced persons. So, I can assure you that we are not going to be derelict on this matter,” he stated in an interview on Accra-based Citi FM.

Ghana incurred the judgment debt over a decision to terminate the power purchase agreement with the Ghana Power Generating Company (GPGC).

Upon the advice of the Attorney General in 2017, the government terminated the deal on grounds that due to its attendant high tariffs, if implemented, it would have cost the state $115,480,000.

But Trafigura, the majority owner of GPGC in January 2021 secured the award after an arbitral tribunal in London found that Ghana had unlawfully terminated a contract for the installation and operation of two power plants.

The government was mandated to pay $170 million to the company or face the risk of losing the Ghana High Commission building in the UK, which provides visa and other services; the commissioner’s residence; the Ghana International Bank building; and other properties through auctioning.

The government has thus released $20 million to initiate the payment process.

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He says that the government claimed they could not provide emergency resettlement for the over 35,000 victims of the Akosombo dam spillage yet it is paying judgement debt they “recklessly created”.

Ablakwa on X (formerly Twitter), posted intercepted documents revealing that the Ministry of Finance has authorized the release of a staggering GHS230.5million (US$20million) to pay for a judgment debt they recklessly & wickedly created.” he tweeted.

“The Akufo-Addo/Bawumia/Ofori-Atta government claims it so broke that they cannot provide emergency housing for VRA-induced flood victims but fresh intercepted documents reveal that they have authorized the release of a staggering GHS230.5million (US$20million) to pay for a judgment debt they recklessly & wickedly created.” he tweeted.

See tweet below:

The Akufo-Addo/Bawumia/Ofori-Atta government claims it so broke that they cannot provide emergency housing for VRA-induced flood victims but fresh intercepted documents reveal that they have authorized the release of a staggering GHS230.5million (US$20million) to pay for a… pic.twitter.com/CdTzmTlOaY

— Sam Okudzeto Ablakwa (@S_OkudzetoAblak) December 13, 2023

The company is threatening the seizure and auctioning of the country’s assets in the UK to defray the debt.

Trafigura, the majority owner of GPGC, a power company secured the award in January 2021 after an arbitral tribunal found that Ghana had unlawfully terminated a contract for the installation and operation of two power plants.

Ghana High Commission’s building in the UK which provides visa and other services, the commissioner’s residence, the Ghana International Bank building, and other properties are at risk of being sold to defray a $140 million judgment debt awarded to Trafigura.

A Deputy Attorney General, Alfred Tuah-Yeboah, says the government has already asked the Finance Ministry to take steps to liquidate the debt.

According to him, the Finance Ministry entered into an agreement with the judgment creditors as to how the state was going to pay the debt of about $140 million.

Although part payment was made, the Deputy Attorney General admitted that the state reneged on its promise to go by the instalment agreement.

“Having failed to do so, the judgment creditor decided to execute the judgment. They attached property belonging to the Republic in the UK, and then they sought to serve us with that process. We then filed a motion trying to set aside the process through which we were served but the High Court in England said no, and that the service on us [state] was properly made. So now, the Ministry of Finance has been advised to once again approach the judgment creditors and make every effort to pay that money,” he explained.

Speaking on Top Story on JoyNews, Ghana’s rep in the United Kingdom, Papa Owusu Ankomah, confirmed that so far, only one building, known as Regina House has been attached.

“As far as I am aware, it’s only Regina House which is used for commercial purposes because it’s been rented by the Ghana International Bank, two other banks and another commercial entity. That is the one that has been attached. All other properties are diplomatic properties and covered by immunity. I heard you talk about the High Commissioner’s residence, but that’s being used for diplomatic purposes, likewise, the other building you’re talking about, that’s the chancery, has not been attached. But I am sure the government is taking steps to liquidate that debt.”

He added, “It’s unfortunate that we’ve come to this stage. It appears our financial circumstances as a country probably, are not holding brief for the finance minister, and that may have constrained the Finance Ministry from honouring the obligation to pay the debt by instalment. But, I am aware that the Finance Ministry is presently engaged in negotiations with lawyers for the judgment creditor to liquidate this debt.

It’s embarrassing; I am embarrassed as High Commissioner for this thing to appear on the internet and everything, and be a subject matter of discussion in Ghana and in the Ghanaian media here. It’s serious, but even for those in private business, it gets to a stage you have to prioritize payments when you don’t have access to credit and monies being generated do not meet your obligations. Of course I am sure government could have said that we will pay this debt, and not pay some workers.”

Despite being alarmed by the situation, the former Minister of state explained that Ghana was not merely going to lose its assets due to the order of the court. He believes the creditors are only taking these initial steps to pile pressure on the government.

“This is just the beginning. It’s quite a process. It’s not as if it can be done either today or tomorrow because Regina House for instance is on a lease. Even though it’s for a long time, it’s got about five or six years to run, and there are negotiations to extend the lease.”

But I can assure you and Ghanaians that the Ministry of Finance has things well in hand. The creditors are interested in their money and it’s not going to be easy selling these properties, so it’s not as if tomorrow they are going to evict the Ghana High Commission and its staff from its premises, or the High Commissioner from his residence or tenants in Regina House are going to be evicted, no. They are going to manage it somehow till they recover the money, so it’s just a way of pressurizing government to pay the judgment debt which I am sure the arrangements are being done” he reiterated.

When the host of Top Story, Evans Mensah asked about what happens to the operations of the Ghana International Bank, the former Sekondi legislator said, “The Bank is a separate entity from the government of Ghana even though the shareholders are agencies of the government. They have access; they are still working, nobody has been evicted including the other tenants in the building. I can confirm that. I was briefed by the Bank even before the order itself was sent to our office, and I know we forwarded it to the Ministry of Finance and I have had some discussions with some members of government about it.

It’s in the interest of even the judgment creditor to get a settlement of bills because executing this by attaching certain properties of the government will not let you easily get your money “he argued.

While avoiding detailed commentary on the decision to terminate a contract that brought about this mess, the former Attorney General blamed this situation on the financial challenges the country is faced with.

“The fact is that we are under serious financial strain, and that is what has occasioned this unfortunate situation. Part [Of the money] was paid, then up to a certain stage because of the financial crunch, I am sure we couldn’t have the means.

I don’t think that we would have deliberately overlooked this liability. When you are financially challenged you prioritize payments. I have been a member of government before so I know what I am saying. Will you stop importing oil because of this debt? Do you stop paying salaries? So, understandably I am sure it’s because of these financial challenges that we’re faced with this situation.

Background

On the 26th of January 2021, Trafigura obtained the final award in its favour against the government of Ghana in arbitral proceedings in England.

A written agreement for the installation and operation of two power plants gave rise to the award, which was roughly $140 million. However, Ghana illegally terminated the agreement before the terms were provided.

On the 4th of November 2021, the Court granted Trafigura leave to enforce the award in the same manner as a judgment of the High Court.

According to sources, service was effected and the deadline for challenging the order was two months and 22 days after service. The deadline date was 1st August 2022, and later it was made by Ghana.

On 17th May 2022, Trafigura issued an application for charging orders in relation to the five London properties and which Ghana had a freehold or leasehold interest.

On the same day, the company also issued an application for alternative service. On 28 April, 2023 an order was made permitting alternative service upon Ghana.

So Trafigura served the ICOs the order and other related documents on 5th May, 2023 by a post by email.

In response to one of the emails, a legal counsel in the Ministry of Finance, whose email address was one of those listed in the appendix to the order, in particular, sent an email on 5th May, 2023, specifically acknowledging receipt of the documents.

On 24 May 2023, Trafigura received an email from White and K stating that it expected to receive instructions to act for Ghana and seeking to agree on a revised timetable in relation to Trafigura’s applications.

However, on 30th May 2023, the hearing was subsequently vacated consents.

On 23rd June, 2003, Ghana issued an application to set aside the order. The order was subsequently dismissed, but a substantial basis for the application was that Trafigura had been obliged to serve not only the order but also the application for the charging orders and the ICO themselves by diplomatic procedure.

Ghana then filed the objections on the 21st of July, 2003 in relation to making the ICOs final but on the 2nd of August, 2023, Trafigura made an application for a receivership order in relation to Ghana’s leasehold interest in one of the London properties.

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The Ministry of Finance is reported to have reneged on its role to pay the award, a development that has culminated in the judgment creditor attaching the government’s assets in the UK.

Oil Trader, Trafigura, won a $140 million arbitral award against Ghana for the termination of a power deal by the state in 2021.

On January 26, 2021, GPGC (a majority-owned Trafigura entity) obtained a final award in its favour against the Government of Ghana in arbitral proceedings in England. The award arose out of a written agreement for the installation and operation of two power plants, which Ghana (as the tribunal found) had unlawfully terminated prior to the expiry of the contractual term.

On November 4, 2021, the court granted GPGC leave, pursuant to section 66(1) of the Arbitration Act 1996, to enforce the award.

Service was effected on May 10, 2022. The deadline for challenging the Cockerill order was two months and 22 days after service – the two months having been added to the normal deadline. The deadline date was 1st August 2022. No challenge was made, however.

On 17th March, 2022, GPGC issued applications for charging orders in relation to five London properties in which Ghana has a freehold or leasehold interest. On the same day, GPGC also issued an application for alternative service.

On April 28, 2023, an order was made permitting alternative service upon Ghana by (i) posting to its London High Commission addresses; and (ii) emailing to a series of addresses listed in the order and its appendix.

GPGC served the ICOs, the order, and other related documents on May 5, 2023 by post and by email. In response to one of those emails, Stephenson Harwood (GPGC’s solicitors) received responses from Grace Mbrokoh-Ewoal, a legal counsel in the Ministry of Finance (whose email address was one of those listed in the appendix to the order).

In particular, Ms Mbrokoh-Ewoal sent an email on May 5, 2023 specifically acknowledging receipt of the documents. 

On 24th May, 2023, Stephenson Harwood received an email from White & Case stating that it expected to receive instructions to act for Ghana and seeking to agree on a revised timetable in relation to GPGC’s applications.

A 30th May, 2023 hearing was subsequently vacated by consent. On 23rd June, 2023, Ghana issued an application to set aside the Knowles order.

The substantial basis for the application was that GPGC had been obliged to serve not only the Cockerill order but also the applications for the charging orders and the ICOs themselves by the diplomatic procedure.

On 21st July, 2023, Ghana filed the objections it wished to raise in relation to making the ICOs final, and on 2nd August 2023, GPGC made an application for a receivership order in relation to Ghana’s leasehold interest in one of the London properties, Regina House.

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They include the official vehicles of the Eastern Regional Director of Education and the Regional GES Accountant and the Birim South District Director of Education.

The Koforidua High Court ordered the seizure following a suit against GES and the Attorney General in 2017 by some teachers over non-payment of salary arrears for three to four years.

The court, presided by supervising High Court judge, Justice Gifty Dekyem (Mrs) on December 18, 2020, entered the judgment including costs and interest to be paid to the plaintiffs.

However, GES in a statement issued by its Public Relations Office, explained the recruitment of the aggrieved persons was done without financial clearance from the Ministry of Finance.

These recruitments, the statement noted, were done at the District and Regional offices without recourse to the Headquarters.

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“In 2017, upon an appeal to the government through the Minister for Education, the Government decided that the appointments should be formalised and the GES through the MoE applied for Financial Clearance from MoF,” part of the statement read.

It added the Financial Clearance granted by the Ministry of Finance, was with effect from 2017, hence, the affected staff agreed in principle that they could only be paid from 2017 based on the Financial Clearance.

“All the people involved were therefore issued fresh appointment letters which took effect from 2017. In spite of the agreement, some of them decided to go to court to claim salaries for work done before 2017. The court ruled in their favour leading to the seizure of three GES Vehicles in the Eastern Region,” the statement explained.

Meanwhile, the statement has indicated the matter is being handled by the Attorney- General’s Department in Koforidua with discussions on the judgment debt payment ongoing.

Read the statement below:

RE: GES VEHICLES SEIZED FOR NON PAYMENT OF SALARIES

1. Before 2017, some people were recruited into GES without Financial Clearance from Ministry of Finance.
2. These recruitments were done at the District and Regional offices without recourse to the Headquarters.
3. In 2017, upon an appeal to government through the Minister for Education, the Government decided that the appointments should be formalised and the GES through the MoE applied for Financial Clearance from MoF.
4. The Financial Clearance granted by the Ministry of Finance, was with effect from 2017.
5. The affected staff agreed in principle that they could only be paid from 2017 based on the Financial Clearance.
6. All the people involved were therefore issued fresh appointment letters which took effect from 2017.
7. They have since been mechanised and have been receiving their regular salaries.
8. In spite of the agreement some of the them decided to go to court to claim salaries for work done before 2017.
9. The court ruled in their favour leading to the seizure of Three GES Vehicles in Eastern Region.
10. GES has since retrieved the three vehicles and discussions are going on as to how to pay the judgement debt.
11. The matter is being handled by the Attorney- General’s Department in Koforidua.
12. Full and detailed statement on the matter will be issued in due course.

SIGNED
PUBLIC RELATIONS OFFICE
GES