The unanimous decision of the apex court presided over by Justice Kwesi Anin Yeboah means that the state has been saved a number of GHc1,272, 985, 310.26.

The panel which also include Justice Jones Dotse, Justice Paul Baffoe-Bonnie, Justice Nene Amegatcher and Justice Sule Gbedegbe (retired) said the state should pay interest at the prevailing rate from 28 November 2014 to the date of payment to NDK.

The full reasoning of the court according to the Chief Justice who presided would be ready on or before June 4, 2021.

Background

The apex court earlier appointed PricewaterhouseCoopers Ghana – an accounting firm – to ascertain the veracity of the over GH¢1.2 billion claims being made by NDK Financial Services Limited against the government through the Ministry of Energy.

The state represented by the Attorney-General and the private firm was then ordered by the court to prepare legal accounts for the auditing firm to work with.

That auditing was to verify how much the state has been able to pay through the Bank of Ghana and whether NDK is still entitled to more payments amounting to some GH¢1,273,000,000 as judgment debt.

The apex Court’s order followed an application by the AG insisting that the state had fulfilled all financial obligations to NDK with regard to certain payments and interests based on the court’s order.

The court in its judgement on Wednesday, June 2, said the state should NDK GHc14, 689.74 instead of the over GHc1.2 billion it was claiming.

Earlier arguments

In March 2019, when the parties appeared before the court, then-Deputy Attorney General Godfred Yeboah Dame told the court that as far as the government is concerned, it has already complied with the judgment of the Supreme Court, but NDK continues to make ‘unsubstantiated’ claims for more money.

According to him, “NDK through a process of categorizing the judgment debt into ‘ascertained’ and ‘unascertained’ parts, has been persistently making claims for humongous sums from the applicant herein, albeit totally unjustified.”

Mr Dame argued that “in the view of the state implies that the sum of GH¢867,441.5 plus interest at the agreed rate of 6.5% per month calculated at the close of each day and payable at the end of every month from 1st April 2009, at the end of every month from 1st April 2009 till the date of final payment”.

He said, “payment of any sums made in contravention of the letters of undertaking cast a burden on the respondent to produce evidence of such payment in contravention of the letters of undertaking by the Ministry of Energy.”

NDK position

But, Alfred Bannerman Williams, counsel for NDK opposed the application which he said: “seeks to truncate the execution of the court’s order.”

Counsel also challenged the ‘inherent jurisdiction of the Supreme Court based on which the AG had filed the application.

Counsel was, however, unable to tell the court how much money the AG owed them but said there were ‘unascertained’ payments.

Justice A.A. Benin, a member of the panel, told the lawyer that the best thing for both parties to do is to appoint an accountant to audit the accounts and ascertain the interest accrued on the principal amount and the lawyer agreed with him.

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