Complaint, First Count, para. 23.) The first payment was payable on April 10, 1979 and the second payment was due on September 10, 1979. According to Tifa, the price of the December, 1978 shipment was $ 787,350.00 payable to Sunrise, half in 180 days and half in 360 days. (Amended Complaint, First Count. para. 25.) Sunrise was to have been paid by the SSB upon presentation of the government contracts to the SSB in Ghana. (Amended Complaint, First Count, para. 23.) Sunrise would then apparently pay Tifa.
The goods and equipment were assembled in New Jersey and shipped from New Jersey to Ghana. (Livingston Cert., para. 14.) By letter, dated November 15, 1978, the SSB forwarded to Tifa's bank in the United States copies of two "accepted drafts" for $ 761,062.78 each. (Id. at Exh. 10.)
After the arrival of the goods in Ghana, Tifa allegedly sent engineering personnel to Ghana to assist in setting up the equipment and training Ghanaians to use the goods. (Livingston Cert., para. 15.) Livingston personally visited Ghana at this time to coordinate the commencement of the program and training of the personnel. (Id.) Livingston states he held numerous meetings in Ghana with government officials who promised to make timely payments. (Id.) A Ghanaian newspaper, dated February 22, 1979, reported the government was undertaking a mass spraying of the entire country. The newspaper indicated the spraying project was a joint venture between Ghana and Tifa. (Id. at Ex. 11.)
The first of the two payments on the original shipment due to Tifa on April 10, 1979 was not paid. Livingston states he began to inquire in April, 1979 as to the status of the payment and the reason for delay. (Livingston Cert., para. 17.)
In early June, 1979 the New Armed Forces Revolutionary Council, led by Flight Lieutenant Jerry J. Rawlings, overthrew the Ghanaian military regime in a coup. (Id. at para. 19.) Shortly thereafter, both General Acheampong and Lt. Gen. Akuffo were executed. (Id.) General Acheampong was apparently executed after being convicted of squandering government funds. (Livingston Cert., Ex. 12.)
Following the coup all telephone, cable and mail communications with Ghana became difficult for several months. (Id. at para. 20.) Sunrise informed Tifa the goods and equipment were being guarded by the new regime. (Id. at para. 20 and Ex. 15.)
After the events in Ghana calmed, Livingston renewed his efforts to collect the payments due and get the pesticide project started. Livingston alleges he was not successful because Sunrise was no longer cooperative and his contacts with the government were no longer extant. (Id.)
According to newspaper reports and individuals visiting Ghana, the Ministry of Health began, in February, 1981, a nationwide spraying project using Tifa supplied goods and equipment. (See id. at para. 22 and Exhs. 17-19.) Tifa alleges it neither participated in the spraying project nor was it paid for the goods and equipment. (Id. at para. 23.) Livingston alleges he has not returned to Ghana since the June 1979 coup because his life has been threatened if he returns. (Id.) Tifa apparently pursued its claim against Ghana through the United States Department of Commerce in 1982 but was unsuccessful. (Livingston Cert. at para. 24.) In 1983 Tifa indirectly assisted Akatto in collection efforts in Ghana against Sunrise and Ozdor. (Id.)
Livingston states he was contacted, in the Fall of 1984, by Baah-Boakye who told Livingston the government of Ghana was conducting an investigation into the pesticide project with Tifa. (Id. at para. 25.) Livingston states he first met with Baah-Boakye in New Jersey at the office of local counsel for Akatto and Howard. (Id.) According to Livingston, Baah-Boakye later came to Tifa's New Jersey offices to review documents. During these meetings Livingston avers Baah-Boakye assured him if the government of Ghana had been involved in the transaction at issue, it would pay Tifa. (Id.) Livingston alleges Baah-Boakye also warned Livingston not to take further legal action because it might jeopardize the investigation. (Id.)
Baah-Boakye, however, contradicts Livingston's assertions. Baah-Boakye avers he met only once with Livingston, on October 16, 1984, at an unspecified location, in order to gather information on the relationship between Tifa and Odzor in conjunction with an investigation by Ghana into the finances of Ozdor. (Affidavit of Kwasi Baah-Boakye, para. 2.) Baah-Boakye avers his only other communications with Livingston were two brief telephone calls regarding their meeting and the investigation of Odzor. (Id. at para. 3.) According to Baah-Boakye, at none of these times did Livingston claim Ghana was responsible for the transaction nor did Baah-Boakye indicate or suggest Tifa should refrain from exercising any option it might have against any party. (Id. at para. 4.)
On February 4, 1987 Tifa filed a complaint in this court. On August 11, 1987, Tifa filed an amended complaint alleging subject matter jurisdiction under 28 U.S.C. § 1330(a); 28 U.S.C. § 1332(a)(2)-1332(a)(4); and 28 U.S.C. § 1602 et seq. (the "Foreign Sovereign Immunities Act" or "FSIA"). In the first count of the amended complaint Tifa alleges Ghana and its various ministries have breached their express promise to participate in the pesticide project as a joint venture. In addition, Tifa alleges defendant SSB has breached its express promise to pay Tifa through Sunrise.
In the second count Tifa alleges Ghana and its various ministries have breached an implied promise to pay Tifa the reasonable value of the equipment and chemicals shipped to Ghana by Tifa. In the sixth count Tifa alleges reliance on the asserted false assurances and misrepresentations of defendant SSB that Tifa would be paid. In the seventh count Tifa seeks damages against Ghana, its various ministries, the GCMB and Sunrise under the doctrines of quasi contract or quantum meruit.
In the eighth count Tifa seeks damages against Ghana, its various ministries, Sunrise, Odzor, DHL, Dodoo and Ashity for misrepresentation and fraud. In the ninth count Tifa seeks damages for misrepresentation and fraud against the Ghana Embassy and Baah-Boakye.
In all counts Tifa seeks damages in the amount of $ 2,309,475.64 plus interest, costs and fees. Tifa seeks punitive damages only in the eighth count.
A district court is powerless to transfer a case unless the court has subject matter jurisdiction over the action. See Atlantic Ship Rigging Co. v. McLellan, 288 F.2d 589 (3d Cir. 1961). Subject matter jurisdiction is "fundamentally preliminary" to both the issues of personal jurisdiction and venue. See Leroy v. Great Western United Corp., 443 U.S. 173, 180, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (1979). Thus, the issue of venue cannot be decided prior to a determination that the court has subject matter jurisdiction over the action.
The blanket denial by the present government of Ghana that no individual or entity has been authorized to act as Ghana's agent in the United States is not dispositive. (See Otoo Aff., para. 12.) Therefore, for the purposes of this motion the allegations in Tifa's amended complaint are taken as true. See Gemini Shipping v. Foreign Trade Organization, 647 F.2d 317, 319 (2d Cir. 1981). The parties conceded this at oral argument.
A. Subject Matter Jurisdiction
28 U.S.C. § 1330(a) confers subject matter jurisdiction on federal district courts over any claim against a foreign state "not entitled to immunity . . . under sections 1605-1607 of this title." 28 U.S.C. § 1604 provides generally that "a foreign state shall be immune from the jurisdiction of the courts of the United States." Section 1605 then sets forth the commercial activity exception to sovereign immunity which reads as follows:
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case . . . in which  the action is based upon a commercial activity carried on in the United States by a foreign state; or  upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or  upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.
28 U.S.C. § 1605(a)(2).
The Third Circuit has noted,
The overriding congressional purpose behind the FSIA was to codify the principle of international law known as "restrictive" sovereign immunity. Adopted officially by the Department of State in 1952, this principle "restricts" the situations in which foreign states may claim immunity from judicial action to those concerning public, or sovereign acts (jure imperii). Immunity is not extended, under this doctrine, to suits based on commercial, or private acts (jure gestionis). Consequently, the presence of commercial activity is the crucial component of the FSIA sections detailing when a foreign sovereign may not invoke immunity.