A three-member arbitration team has ruled in favor of Ghana Cocoa Board in a controversial case in which Seidu Agongo and others were seeking to force COCOBOD to take delivery of some fertilizer worth over $46.4m.
The ruling by the Arbitration Chaired by revered Nana Dr. S.K.B Asante means that the Joseph Boahen-Aidoo led COCOBOD has saved the nation about $50M.
Seidu Agongo who owns all the three companies in AGRICULT GHANA LIMITED, SARAGO LTD and ALIVE INDUSTRIES LTD, selected Kizito Beyuo Esq to represent him in the arbitration which was set up at his instance. Justice Francis Emile Short represented COCOBOD.
In its final award, a copy of which is in possession of the New Crusading GUIDE, the Tribunal ruled that “THE TRIBUNAL DISMISSES THE CLAIMS OF THE CLAIMANTS IN THEIR ENTIRETY AND XENIES ALL THE RELIEFS SOUGHT BY THE CLAIMANTS”.
Published below are portions of the claims made by the Respondent (COCOBOD)
RESPONDENT (COCOBO) is the statutory body charged with the responsibility of regulating the cocoa industry in Ghana.
ii, Amongst its object, Respondent is required, to distribute and market inputs used in the production of cocoa and other crops. These inputs include Fertilizers (granular and foliar), fungicides and insecticides.
iii, As the regulator, the respondent has a system for testing and certification of chemicals and fertilizers for use on cocoa. The system for testing is conducted by Respondent’s Division, the Cocoa Research Institute of Ghana (CRIG). CRIG has the mandate, among others to undertake research into diseases and pests’ problems affecting cocoa and other crops, as well as into soil fertility and agricultural practices. It also has a system for the testing and certification of chemicals and fertilizers for use in cocoa
iv, the full compliance with the testing certification and subsequent annual renewals of certification by CRIG of all agro-chemicals to be use on the cocoa is a sine qua non to securing any contract to supply agro chemicals for use on cocoa by the Respondent.
The Respondent further submits that:-
V, STEPHEN OPUNI, The former Chief Executive of the respondent in 2014, 2015, and 2016 entered into various agreements with the Claimants to supply various quantities of agro-chemicals for use on cocoa.
vi, After the 2016 general elections, the matter of the contracts for agro-chemicals was deliberated upon by the Transitional Team set up to oversee the handover of the reins of government from the outgoing administration to the incoming administration.
vii, the Transitional Team noticed some malpractices in the testing of agro-chemicals at CRIG and therefore recommended among others, that the new management of Respondent should, upon assumption of duty, conduct full investigations into the matter.
viii, upon taking office in February 2017, the new management of Respondent conducted preliminary investigations into the testing and certification of agro-chemicals and found that some of them, including claimants ‘ agro-chemicals Lithovit Fertilizers, Duapa Fertilizer and Acati Power Insecticide did not go through the full testing cycle before certification and therefore efficacies cannot be guaranteed. Indeed, Duapa Fertilizers was not submitted for testing at all.
- In respect of the Lithovit fertilizer, the Respondent specifically accuses the 1st Claimants of fraud. In stating the particulars of fraud, (SOD-R Para. 15-23) the Respondent argued that:
- a) The 1st Claimants, by submitting powdery Lithovit for testing and subsequently submitting a quotation for liquid Lithovit at Dr. Stephen Opuni’s (i.e. the Respondent’s then Chief Executive) request and actually supplying liquid Lithovit, was fraudulent because the liquid fertilizer was not what was tested by the CRIG. The Respondent avers that the 2015 to 2016 contracts entered into with the Claimant were based on the results of the testing of the powdery and not the liquid product which the Claimants supplied to the Respondent, meaning that the contract were procured by fraud .
- b) The two 2015 contracts and 2016 contracts executed with the 1st Claimants arose out of a “fundamentally fraudulent report’’ generated by an officer of CRIG, Dr. Afrifa (the Chief Scientist), in collusion with Dr. Opuni and the Claimants, and intended to unjustly enrich themselves (SOD-R Para.14)
- c) The 1st Claimant falsely misrepresented in it quotation of 26th February 2014 that the Liquid Lithovit was to be manufactured in and imported from Germany, thereby, quoting it sale price in US dollars, when infact, it was manufactured in the Claimant’s facility in Ghana
- d) Contrary to laid down procedures the 1st Claimant did not apply for renewal of its initial certificate, though it certificate was renewed for 2015 and 2016 by officers of the Respondent without conducting the requisite field and laboratory tests.
2) In support of it allegation of collusion between the 1st Claimants and Dr. Opuni, the Respondent Claims that in it procurement Practices, the norm is that a request to procure an item is generated by a user department, but the request for procurement of the Lithovit Fertilizers was initiated by Dr. Opuni without recourse to any user department
3) The Respondent further contends that:-
- The 1st Claimants is in breach of contracts because both the powdery Lithovit Fertilizer that was tested CRIG and the liquid fertilizer subsequently tested by the Ghana standards Authority and the chemistry Department of the University of Ghana were not fit for purpose.
- The 1st Claimants is in breach of a fundamental obligation of the contracts by misrepresenting that the goods contracted for were manufactured in Germany, when in fact, they were manufactured in Ghana (SOD-R Para.102)
4) The Respondent argues that the misrepresentation was fraudulent, amounted to a fundamental breach of contract, vitiated the whole contract and absolved the Respondent from any further obligations under the contract (section 48(1) (c) of the Sale of Goods Act, 1962(Act 137).