The issue of whether or not the Sale and Purchase Agreement executed and ratified by Parliament in the sale of Ghana Telecom can be challenged at a High Court is to be determined by the Supreme Court.
The Supreme Court will, among other constitutional issues, also look at whether or not Articles 6(I) (6)10 (7) 12 and 13 (21) of the agreement contravene the country's constitution as set out in the pre-trial of the case initiated by six Ghanaians led by Professor Agyeman Badu Akosa, a former director-general of the Ghana Health Service, in October last year.
The Commercial Court hearing the litigation on the case announced these decisions on Friday in its ruling on a motion to the court to vary these and others issues set out in the pre-trial of the case on December 23, 2008.
The court presided over by Justice Henry Coffie said the issues raised border on the constitution which compelled him to refer the matter to the Supreme Court which had the exclusive jurisdiction, over constitutional matters.
He held that the issues could not be varied as was being sought by the six plaintiffs, Prof. Akosa, Kossi Dede, Dr. Nii Moi Thompson, Naa Kordai Assimeh, Rodaline Imoru Ayarna and Kwame Jantua.
Consequently, the court has given the defendants - the Attorney General and Ghana Telecom (now Vodafone) - up to November 3, to furnish it with the version of the agreement executed and ratified by parliament.
The court adjourned the case to November 23, to enable it to study the agreement in order to refer the necessary areas that touch on constitutionality to the Supreme Court.
In the substantive suit, the plaintiffs contend that the Sale and Purchase Agreement entered into between the Government of Ghana, GT and Vodafone for the sale of 70 per cent of GT for $900 million was against the public interest and constituted an abuse of the discretionary powers of the government.
They said they were opposed to the unlawful establishment of the said Enlarged GT Group, which undermined the sovereignty of the country and endangered the national security of Ghana.
In their view, the decision of the government to transfer the assets, properties, shares, equipment, among other things to Vodafone, was obnoxious, unlawful and inimical to the public interest, particularly when no consideration was required, to be paid by Vodafone for the stated assets.
The six argued that the three Ministers of State and the managing director of GT who signed the agreement on behalf of the government did not exercise the requisite level of circumspection required of them as public officers in relation to public property.
The plaintiffs are therefore, seeking reliefs from the court, including a declaration that the agreement entered into, by the government was not in accordance with the due process of law and was, therefore, a nullity.
They are also demanding that the court should give an order declaring that the forcible grouping of autonomous state institutions established by law Voltacom, Fibreco, VRA Fibre Network and VRA Fibre Assets with GT to form the purported Enlarged GT Group was unlawful and, therefore, void and of no legal effect.
The plaintiffs are further praying for an order of perpetual injunction to restrain the government from disposing of its 70 per cent share of GT to Vodafone or any other foreign company without first exploring avenues for funding and better management in Ghana.
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