The high court in Accra (general jurisdiction, has dismissed the suit filed by two teacher unions- the Innovative Teachers and All Teachers Alliance Ghana (ATAG) against K. A Technology, Ministry of Education and two others for lack of capacity.
This was upon an application by lawyers for K. A Technology to dismiss the action.
The court also awarded a cost of GHC15, 000 against the plaintiffs in favour of the first Defendant (K.A Technologies Ghana Limited) in the matter.
Two unions, Innovative Teachers and All Teachers Alliance Ghana (ATAG), jointly sued the Ghana Education Service (GES), the Attorney-General, and the Education Ministry over a move to award a contract on the initiative to the first defendant, K.A Technologies Ghana Limited.
However, in court on Thursday, the court dismissed the suit on grounds that, the Plaintiffs have not demonstrated to the court the capacity with which they filed the suit.
According to the court, the issue of capacity goes to the root of the matter the Plaintiffs have filed and cannot seek legal rights when they are not parties to the contract.
The court said the plaintiffs have “no cause of action against the Defendants” and proceeded to award a cost of GHc15,000 in favour of the 1st Defendant (applicant).
Plaintiffs have no locus
The decision of the Court was after the lawyer of the 1st Defendant (K.A Technologies Ghana Limited) Edward Kwame Oppong had moved a motion for the suit to be set aside.
While moving the motion, Lawyer Oppong told the court that, “We have an application to set aside the Plaintiffs’ writ of summons and statement of claims as well as service of same on the 1st Defendant (applicant) and for this court to dismiss the instant suit against the 1st Defendant in the case for want of capacity to sue.”
While moving the motion in terms of the motion paper and supporting affidavit, counsel relied also on the processes filed in the case
Lawyer Oppong submitted that, the Plaintiffs have not demonstrated in their pleadings that they have the capacity to bring the instant action.
According to counsel, a look at the pleadings and the reliefs being sought for by the Plaintiffs (Unions) “clearly my lord will see that the Plaintiffs are not parties to the said contract and they have no interest for whatsoever.”
No opposition
Counsel further submitted that, when the plaintiffs were served with the instant application as far back as December 10, “they have not filed any affidavit in opposition even though on 14 December, counsel for Plaintiffs (Teacher Unions) was in court and at his instance, the suit was adjourned to today.
“It is our case that, capacity to sue goes to the jurisdiction of the court and once you have not been able to demonstrate the capacity to the court, the law is clear that, the court has no jurisdiction of the matter,” counsel told the court.
It was the case of counsel again that, despite the fact that, the application is being brought by the 1st Defendant (Applicant), the court can find from the reliefs of Plaintiffs that, “they have nothing against all other parties except to say that the action by the 1st Defendant and 4th Defendant should be declared null and void.”
Counsel said the teacher unions have not indicated they are parties or have any legal or equitable rights that they want the court to protect.
In his final submission, counsel said “It is our humble submission that, this court grants our prayer and proceed to dismiss not only the suit against 1st Defendant (Applicant), but the entire suit for want of capacity to sue.”
He added that “We have demonstrated that, the 1st Defendant (Applicant) is a limited liability company known in Ghana and pray the application to be granted and the whole application of Plaintiff’s dismissed with cost.”
AGs response
For her part, Yvonne Opong, an Assistant State Attorney who represented the Attorney General (2nd Defendant), GES (3rd Defendant and the Ministry of Education (4th Defendant) associated herself with the submissions made by counsel for the 1st Defendant (Applicant).
The lawyer for the Plaintiffs was absent when the case was called.
Subject matter
The two Trade Unions within the Educational Sector, Innovative Teachers, and All Teachers Alliance Ghana (ATAG), dragged the Ghana Education Service (GES), the Attorney-General, and the Ministry of Education to court over the procurement of laptops for teachers.
The Plaintiffs were demanding that the sole-sourced contract awarded to K. A Technologies Ghana Limited, be annulled on grounds that it is contrary to sections 40 (a)(b)(c)(d) and (e) of the Public Procurement Act, 2003 (Act 663).
According to them, “the 4th Defendant has failed to publish the details of the contract on the website of the Public Procurement Authority, contrary to section 3 c(1 and 2) of the Public Procurement Act in an attempt to hide the transaction from public scrutiny.
The plaintiffs say, “the 1st Defendant lacks the capacity to enter into contractual relations with the 2nd, 3rd and 4th Defendants acting for the government of Ghana to manufacture and distribute laptops to all teachers throughout the country,” and that “the 1st Defendant does not meet the Mandatory Eligibility Criteria as set forth in Section III (C) of the procurement of the Information Technology Product document issued by the Public Procurement Authority, Ghana for the year 2019,” the plaintiffs’ stated in their reliefs.
They accused the government of creating K.A Technologies “only by virtue of the contract for distributing laptops under the initiative by the government, acting through the 2nd, 3rd and 4th Defendant.”
Orders
The plaintiffs were also seeking “an order for Interlocutory Injunction restraining the defendants, their agents, successors. Assigns, servicemen, workmen and all persons claiming through them, from awarding or entering into a contract of selling or distributing laptops computers and/or in any way dealing with or interfering with any contract of selling or distributing laptop computers under the one teacher one laptop computer programme pending the final determination of this suit in terms of the accompanying affidavit.”
They were also demanding that any amount paid to the 1st Defendant by the government for manufacturing and distribution of laptops should be
refunded.
The government, per the deal, will pay 70% of the cost of GHS1,550 with the teachers’ paying 30% through deductions from their salaries.
The programme, according to the Vice President, Dr. Mahamudu Bawumia, is aimed at bridging the ICT gap between teachers in urban areas and their colleagues in rural areas.
