Courts barred from seizure of international military assets

The Supreme Court Friday barred all lower courts from detaining any international warship in the territorial waters of Ghana.
Ordering that there should be “no further seizures of military assets by Ghanaian courts”, the highest court of the land held that the High Court exceeded its jurisdiction when it grounded ARA Libertad, an Argentine military warship, from leaving the shores of Ghana in October, 2012.

In a unanimous decision, the Supreme Court held that it was wrong for the lower court to have detained the vessel in the first place and, accordingly, restrained the lower courts from taking such decisions in future.

The court held that such acts were dangerous because they had the tendency of endangering the territorial sovereignty of Ghana and, accordingly, quashed an October 2 and 11, 2012 order of the High Court which detained the vessel.

The High Court, presided over by Mr Justice Adjei Frimpong, had ruled in favour of NML Capital, an investment firm, that said Argentina owed it $370 million which culminated in the detention of the vessel.

The court’s decision nearly sparked a diplomatic row between Ghana and Argentina, with that country subsequently lodging a complaint at the International Tribunal for the Law of the Sea, which ruled in its favour and ordered the unconditional release of the vessel.

‘New Law’ by trial judge

Describing the decision of the lower court as an error, the Supreme Court held that the High Court sought to make a new law when it ordered the arrest and detention of the military vessel.

In holding that such acts were against international law, the Supreme Court said the vessel had immunity and, for that reason, the lower court had no right to tamper with or waiver that immunity.

Future checks on lower courts

Although the warship left the shores of Ghana in December, 2012 the Supreme Court’s decision will serve as a check on future decisions of lower courts when similar matters are brought before them.

Granting the state’s certiorari application which was filed on December 18, 2012 and which had prayed the court to quash the October, 2012 order of the High Court that allowed the attachment of the naval vessel in enforcement of a commercial contract, the Supreme Court held that the High Court exceeded its jurisdiction in grounding the vessel.

Citing numerous local and international authorities to buttress its decision, the court stated that the High Court should have declined jurisdiction over the matter when it was brought before it last year.

The Panel

The court’s decision was read by Professor Justice S. K. Date-Bah. Other members of the panel were Mr Justice Jones Dotse, Mr Justice Annin Yeboah, Mr Justice N. S. Gbadegbe and Mr Justice J.B. Akamba.

The court congratulated counsel in the case for putting in brilliant submissions to assist it in arriving at its decision.

In a concurring opinion, Mr Justice Gbadegbe advised lawyers to file separate certiorari applications for two separate rulings, saying it was in contravention of the Supreme Court rules to file one certiorari for two separate rulings.

He also advised the lower courts to take note of rules of court and comply with them accordingly.

A Principal State Attorney, Mrs Sylvia Adusu, expressed profound appreciation to the court for its erudite judgment.

The Attorney-General and Minister of Justice, Mrs Marietta Brew-Oppong Appiah, and the Solicitor-General, Mrs Amma Gaisie, were present in court.

Mrs Appiah also expressed joy at the court’s judgement.

Background

The Accra High Court,  in October 2012, ordered that the ship, ARA Libertad, should remain at the port pending the hearing of a writ which sought to enforce in Ghana judgements against Argentina issued by the United States District Court for the Southern District of New York and supported by similar judgements in London.

That followed the granting of an application for an injunction and interim preservation filed by NML Capital, a commercial creditor of Argentina, against that country.

The court further ordered the Harbour Master, whether by himself or his assigns or agents, to preserve the presence of the ship and also go on board the ship to take possession of all its mandatory documents.

Argentina could, however, obtain release of the ship by leaving a bond with the court.

NML Capital is a subsidiary of Elliott Management, a New York-based investment fund engaged in the management of investments on behalf of pension funds, university endowments and other institutions and individuals.

International creditors have won more than 100 court judgements against the Argentine government but Argentina has refused to honour the judgements and repudiated bonds which it issued in good faith.
In fact, US and UK courts are said to have awarded $1.6 billion in claims in NML’s favour.

The legal action in Ghana was among hundreds of court actions brought by private creditors around the world seeking to recover their loans.

NML Capital was, on December 18, 2006, granted a summary judgement by the US District Court for recovery from Argentina the principal amount of bonds valued at $284,184,632.30 with respect to 10.25 per cent Global Bonds due July 21, 2030, plus interest thereon.

Consequently, on December 5, 2011, the UK High Court (QB) ordered the payment of the principal bond amount with interest by consent.

The Libertad, a training ship for seamen from Argentina and other countries, was on a tour of Africa when it was impounded in Ghana’s territorial waters.

Launched in 1956, the 104-metre vessel has been estimated in value at between $10 million and $15 million.

Unprecedented case

The case is unprecedented in many respects because this is probably the first time that the issue of whether the assets of a foreign sovereign can be attached to enforce a judgement obtained in a foreign court has been tried in Ghana.

Under international law, the doctrine of sovereign immunity of states bars the courts of other countries from assuming jurisdiction in cases involving the assets or properties of foreign sovereigns.

Some states adhere strictly to this doctrine and thus grant absolute immunity to foreign states, while other countries do not.

The Supreme Court has, therefore, applied international law to the letter by declaring the lower court’s decision to seize the military vessel as unconstitutional.


By Mabel Aku Baneseh
Writer’s email: mabel.baneseh@graphic.com.gh.