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13th June 2012
PRESS STATEMENT
Development Data
ILLEGAL FUEL PRICES CASE:
ALEX MOULD AND OTHERS CITED FOR CONTEMPT
The chief executive of
the National Petroleum Authority (NPA) Mr Alex Mould and
others
have been cited, in their
personal capacities, for contempt of court following
their refusal to
comply with court orders
issued last year. In November last year, the High Court
ordered
the NPA and TOR to refund
an estimated GH¢800 million of illegal fuel price
margins
disguised as “ex-refinery
differential” into the Consolidated Fund, and also, to
remove the
illegal margins from the
fuel price build up.
Also cited for contempt
is Mr Ato Ampiah, the managing director of Tema Oil
Refinery
(TOR). If convicted, the
two could face several years of imprisonment. Alongside
these two,
the NPA and TOR as
corporate entities, have also been cited as guilty
parties and could pay
heavy fines.
The applicants behind
this committal for contempt are Mr Kwaku Kwarteng, the
NPP
Parliamentary Candidate
for Obuasi, Mr Abdul Ganiyu of Tamale, and Development
Data, a
policy research
organization. Applicants are praying the High Court to
punish Mr Mould and
Mr Ampiah for willfully
refusing to pay the amount accruing from the illegal
charge into the
Consolidated Fund, and
also, for refusing to remove the “ex-refinery
differential” from the
fuel price build-up.
These contemptuous conducts, applicants say, have
brought the courts
to public ridicule.
On 28th November 2011,
the High Court abolished the “ex-refinery differential”
and ordered
the NPA to refund the
illegal amounts collected. The NPA applied for a stay of
the execution
of the High Court
judgment, which application was refused. The NPA
proceeded to the
Court of Appeal to repeat
their stay of execution, which application was again
refused.
But to date, the NPA and
TOR have refused to carry out the orders and have
claimed that
the amounts collected are
used for good purposes. Plaintiffs have rejected this
claim and
raised concerns that the
money could be entering people’s pockets because it is
not subject
to the financial controls
that funds lodged into the Consolidated Fund are subject
to.
If convicted, Mr Alex
Mould and Mr Ato Ampiah could face prison terms while
the NPA and
TOR will suffer hefty
fines.
Please find attached the
motion and affidavit by the applicants.
Joshua Quashigah-Sowu
Research Director
IN THE SUPERIOR COURT OF
JUDICATURE
IN THE HIGH COURT OF
JUSTICE
ACCRA – AD 2012
Suit No:
1. Development Data,
B907/10 Abonua Street, ACCRA
2. Kwaku Kwarteng, 12
Ridge, Gausu Ext, OBUASI
3. Abdul Ganiyu,
Sabonkudi House, TAMALE
Versus
1. National Petroleum
Authority
2. Tema Oil Refinery
AND IN THE MATTER OF AN
APPLICATION FOR COMMITTAL FOR CONTEMPT
The Republic
Versus
1. National Petroleum
Authority
2. Tema Oil Refinery
3. Alex Mould
4. Ato Ampiah
EX-PARTE
1. Development Data,
B907/10 Abonua Street, ACCRA
2. Kwaku Kwarteng, 12
Ridge, Gausu Ext, OBUASI
3. Abdul Ganiyu,
Sabonkudi House, TAMALE
MOTION ON NOTICE FOR
COMMITTAL FOR CONTEMPT OF COURT
TAKE NOTICE
that Honourable Court will be moved by
Alex Abban Esq, Counsel
for and on behalf of the
Applicants herein praying this Honourable Court for the
committal of the
Respondents herein for contempt of court for wilful
violation of the
judgment of this
Honourable Court dated 28th November, 2011 upon the
grounds
deposed to in the
accompanying affidavit and for any further order(s) as
this
Honourable Court may deem
fit.
COURT TO BE MOVED on the
day of
at 9.00 o’clock in the
forenoon or so soon thereafter as Counsel may be heard.
PLAINTIFFS
APPLICANTS
DEFENDANTS
RESPONDENTS
DATED IN ACCRA THIS 12TH
DAY OF JUNE 2012
Solicitors for Applicants
The Registrar
High Court
Accra
AND TO:
1st Respondent
(National Petroleum Authority)
The Centurion, House
number 11, 5th Circular Road, Cantonments, ACCRA
2nd Respondent
(Tema Oil Refinery)
Heavy Industrial Area,
Walco Road, TEMA
3rd Respondent
(Alex Mould)
The Centurion, House number 11, 5th
Circular Road, Cantonments, ACCRA
4th Respondent
(Ato Ampiah)
Heavy Industrial Area,
Walco Road, TEMA
IN THE SUPERIOR COURT OF
JUDICATURE
IN THE HIGH COURT OF
JUSTICE
ACCRA – AD 2012
Suit No:
4. Development Data,
B907/10 Abonua Street, ACCRA
5. Kwaku Kwarteng, 12
Ridge, Gausu Ext, OBUASI
6. Abdul Ganiyu,
Sabonkudi House, TAMALE
Versus
3. National Petroleum
Authority
4. Tema Oil Refinery
AND IN THE MATTER OF AN
APPLICATION FOR COMMITTAL FOR CONTEMPT
The Republic
Versus
5. National Petroleum
Authority
6. Tema Oil Refinery
7. Alex Mould
8. Ato Ampiah
EX-PARTE
1. Development Data,
B907/10 Abonua Street, ACCRA
2. Kwaku Kwarteng, 12
Ridge, Gausu Ext, OBUASI
3. Abdul Ganiyu,
Sabonkudi House, TAMALE
AFFIDAVIT IN SUPPORT
I, Kwaku Kwarteng
of house number 12 Ridge, Gausu Extension, Obuasi make
oath and say as follows,
that:
1. I am the deponent
herein, 2nd Plaintiff/Applicant herein, and have the
authority of the 1st and
3rd Plaintiffs/Applicants to depose to the facts in this
affidavit, which have
come to my personal knowledge, information and honest
belief.
2. At the hearing of this
application counsel shall seek leave of the court to
refer
to all processes filed so
far in respect of the case as if same have been
incorporated herein and
sworn to.
PLAINTIFFS
APPLICANTS
DEFENDANTS
RESPONDENTS
3. NPA is a body
corporate set up under the National Petroleum Authority
Act,
2005 (Act 691) and has
the responsibility to announce and monitor price
ceilings of petroleum
products in accordance with the prescribed petroleum
pricing formula.
5. TOR is a body
corporate and petroleum service provider set up by
Government
of Ghana and is in the
business of importing and refining crude oil and selling
same to the oil marketing
companies.
6. On 28th September
2009, Plaintiffs caused a writ of summons
(suit no: BC
553/2009)
together with a statement of claim to be
filed at the High Court and
served on the National
Petroleum Authority (1st Defendant in that suit) and
Tema Oil Refinery (2nd
Defendant in that suit). Attached herewith and marked
as exhibit KK1 is
a copy of the writ of summons issued from this
Honourable
Court.
7. In the suit referred
to in paragraph 6 of this affidavit, Plaintiffs prayed
the
Court to declare the
“ex-refinery differential” component of petroleum price
build up as illegal,
order Defendants to stop the imposition and collection
of the
“ex-refinery
differential”, and order Defendants to pay the total
amount
accruing from the
imposition of the “ex-refinery differential” since 5th
June
2009 into the
Consolidated Fund of Ghana.
8. On 28th November 2011
the High Court, in its judgment, ordered the National
Petroleum Authority
(hereinafter referred to as NPA) and Tema Oil Refinery
(hereinafter referred to
as TOR) to cease and desist from collecting the illegal
ex-refinery differential,
and also, to pay the total amount accruing from the
imposition of the
“ex-refinery differential” since 5th June 2009 into the
Consolidated Fund.
Attached herewith and marked as exhibit KK2 is a
copy of
the High Court’s
judgement.
9. Aggrieved by the said
judgment, the NPA filed an appeal to the Court of Appeal
on 29th November 2011 and
proceeded to file before this Honourable Court a
motion for stay of
execution of the judgement on 5th December 2011.
10. On 24th January 2012,
the motion by the NPA for stay of execution was
dismissed. Attached
herewith and marked as exhibit KK3 is copy of the
High
Court’s ruling.
11. On 6th February 2012,
NPA repeated at the Court of Appeal its motion for stay
of execution of the High
Court’s judgement, which motion was again dismissed
on the 26th March 2012.
Attached herewith and marked as exhibit KK4 is a
copy of the ruling by the
Court of Appeal.
12. There has never been
a stay of execution on the High Court orders given on
28th November 2011, and
there is currently no stay of execution on those High
Court orders.
13. The 3rd Respondent to
the instant application, Alex Mould, is the Chief
Executive Officer of the
NPA and therefore has the responsibility ultimately to
decide whether or not to
remove the illegal ex-refinery differential from the
price
build-up of petroleum
prices; he also has the responsibility ultimately to
decide
whether or not to pay the
total amount accruing from the imposition of the
“exrefinery
differential” into the
Consolidated Fund.
14. The 4th Respondent to
this application, Ato Ampiah, is the Managing Director
of TOR and therefore has
the responsibility ultimately to decide whether or not
to stop the collection of
the illegal ex-refinery differential on behalf of the
NPA in
accordance with this
Honourable Court’s order.
15. I am advised by
counsel and believe same to be true that the Respondents
have
wilfully refused to
comply with the High Court’s orders.
16. The main reason for
this Honourable Court’s declaration of the ex-refinery
differential as illegal
was that it was not listed in the prescribed petroleum
pricing formula quoted by
the plaintiffs and admitted by both the NPA and TOR
in court. (Please refer
to page 19, line 12 to page 22,
line 7 of the High
Court Judgement).
17. The High Court
further mentioned in the same page 19, line 12 to page
22, line
7 referred to above, that
the ex-refinery differential is in fact an illegal tax
not
approved by Parliament.
18. In spite of the High
Court’s declaration that the ex-refinery differential is
illegal,
the NPA went ahead to
gazette it on 13th January 2012, and claims the
exrefinery
differential is now part
of a revised petroleum pricing formula. (Please
refer to a copy of the
gazette notice attached and marked KK5).
19. I am advised by
counsel and believe same to be true that the decision of
the
NPA to include what the
High Court has declared as illegal in the supposedly
revised petroleum pricing
formula, is in utter contempt of this Honourable
Court.
20. While Section 2(2)(l)
of Act 691 mandates the NPA to periodically review the
prescribed petroleum
pricing formula, section 80(1)d obliges the NPA to do so
through regulations
that must be passed in a legislative instrument
by
Parliament, which
legislative instrument has not been passed.
21. The fact stated in
paragraph 20 of this affidavit was affirmed by the High
Court
in page 18, line 1 to
page 19, line 3 of its judgement.
22. I am advised by
counsel and believe same to be true that the gazetting
and
continued imposition of
the ex-referential differential, which has been declared
by this Honourable Court
as an illegality, amounts to a wilful defiance of the
justice administration
system by the NPA.
23. In its judgement of
28th November 2011, this Honourable Court also ordered
TOR to stop collecting
the illegal ex-refinery differential on behalf of the
NPA
forthwith.
24. In spite of this High
Court order, TOR continues to collect the illegal
ex-refinery
differential on behalf of
the NPA.
25. I am advised by
counsel and believe same to be true that, Respondents,
having
wilfully refused to
comply with the court orders, have brought the
administration of justice
into disrepute and public ridicule, and are in
contempt of court.
26. The Respondents’
lawless and contemptuous conduct is intended to
overreach
the jurisdiction of this
Court.
WHEREFORE I swear to this
Affidavit in support of the instant application praying
this Honourable Court to
commit the Respondents for contempt in the manner
following:
i. A heavy fine against
the 1st and 2nd Respondents.
ii. An order of
imprisonment in respect of the 3rd and 4th Respondents.
SWORN IN ACCRA THIS ]
] …………………………..
DAY OF JUNE, 2012. ]
DEPONENT
BEFORE ME
For service on:
1st Respondent
(National Petroleum Authority)
The Centurion, House
number 11, 5th Circular Road, Cantonments, ACCRA
2nd Respondent
(Tema Oil Refinery)
Heavy Industrial Area,
Walco Road, TEMA
3rd Respondent
(Alex Mould)
The Centurion, House
number 11, 5th Circular Road, Cantonments, ACCRA
4th Respondent
(Ato Ampiah)
Heavy Industrial Area, Walco Road,
TEMA
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