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Agreement - 1992
Constitution - article 181 (5) -
Interpretation - International
business or economic transaction
- whether an international
business transaction entered
into with the Government and a
resident company in Ghana is an
international transaction -
Whether or not the original
jurisdiction of the supreme
Court under Article 130(1) has
been wrongfully invoked.
HEADNOTES
According to the Plaintiff, the
1st Defendant entered
into a Power Purchase Agreement
(hereafter PPA) with Karpower
(Ghana) Limited, which was
guaranteed by the 2nd
defendant and facilitated by the
government of Ghana through a
letter , which according to the
Plaintiff, should have been laid
before Parliament for approval.
by Parliament pursuant to
article 181 (5) of the
Constitution 1992. The Plaintiff
further contended that, the 1st
Defendant even though a limited
liability company cannot be said
to be entirely independent
because the Government of Ghana
virtually controls it’s
activities as it is entirely
owned and funded by the
government. The Plaintiff argued
the unconstitutionality of the
transactions were brought to the
attention of Parliament, and the
President. the decision of
Government to approve the said
transaction by cabinet without
referring same to Parliament for
consideration or approval
constitutes usurpation of the
constitutional mandate of
Parliament as enshrined in
article 181 (5) of the
Constitution. In respect of the
2nd Defendant, the
Plaintiff argued that the
issuance of the bank guarantee
by them ought to have been
approved by Parliament in
accordance with article 181 (1)
of the Constitution and sections
7 (3) (a) and (b) of the
Petroleum Revenue Management Act
2011 (Act 815). In response, the
Defendants denied that the
Plaintiff is entitled to the
reliefs he claims before the
court They contended rightly in
our view that, this conversion
implied that the 1st
Defendants are separate and
distinct from it’s sole
shareholder, (the Government),
and therefore it’s acts cannot
be attributed to the government.
Furthermore they contended that
it’s operations are funded
solely from it’s own internally
generated funds, and not from
the consolidated fund.According
to the Defendants, the
internationality of an agreement
such as the PPA in this instance
is not the only criteria for
holding that such a transaction
must be laid before Parliament
for approval.
HELD -
In the premises, the plaintiff’s
case is dismissed in it’s
entirety. This is because in our
opinion, the transactions to
which this particular case
relates is not an “international
business or economic
transaction” as envisaged in
article 181 (5) of the
Constitution, and as variously
interpreted by this court in
several decisions referred to
supra. It should be noted that,
the 1st and 2nd
Defendants, being separate and
distinct legal entities from
their enabling statutes referred
to supra, it follows that the
role of Government as portrayed
through the letter of comfort
does not connote an
interpretation such as would
link them to Government. The
transactions mentioned in the
instant case involving the 1st
and 2nd Defendants is
thus not an international
business or economic transaction
as envisaged under article 181
(5) of the Constitution.
Furthermore, the 3rd
Defendant’s letter of comfort
does not qualify the
transactions as international
business or economic such as to
bring them under the purview of
article 181 (5) of the
Constitution. For the above
reasons, the Plaintiff’s action
fails and is dismissed in their
entirety.
STATUTES REFERRED TO IN JUDGMENT
Petroleum Revenue Management
Act, 2011 (Act 815
Companies Act 1963 (Act 179), by
virtue of the Statutory
Corporations (Conversion to
Companies) Act 1993 (Act 461
Ghana National Petroleum
Corporation Act 1983 (PNDCL 64).
Loans Act, 1970 (Act 335).
CASES REFERRED TO IN JUDGMENT
Republic v High Court,
(Commercial Division), Accra;
Ex-parte Attorney-General
(Balkan Energy Ghana Limited and
others -Interested Parties)
[2011] 2 SCGLR 1183
Attorney-General v Faroe
Atlantic [2005-2006] SCGLR 271
Attorney General v Balkan Energy
[2012] 2 SCGLR 998 at 1034
Attorney General v Faroe
Atlantic Limited, (supra)
Attorney General v Balkan Energy
Ghana Limited and Others, [2012]
2 SCGLR 998,
Amidu (No. 2) v
Attorney-General, Waterville
Holdings (BVI) Limited and
Woyome (No. 2) 2013-14 1 SCGLR
606
Klomega (No. 2) v
Attorney-General & GPHA (No. 2)
[2013-14] 1 SCGLR 581.
Republic v Special Tribunal; Ex
Parte Akosah [1980] GLR 529
Aduamoa II v Twum II [2000]
SCGLR 165
Bimpong Buta v General Legal
Council [2003-2004] SCGLR 1200
Judicial Service Staff
Association v Attorney-General
and 2 others, No. JI/5/2015 23rd
June 2016
BOOKS REFERRED TO IN JUDGMENT
Merriam-Webster Dictionary of
Law (1996)
DELIVERING THE LEADING JUDGMENT
DOTSE JSC
COUNSEL
ALEXANDER KWAMENA AFENYO MARKIN
WITH KORKOR OKUTU FOR THE
PLAINTIFF.
JOE SLOVO TIA FOR THE 1ST
DEFENDANT.
TONY LITHUR FOR 2ND
DEFENDANT WITH MRS. EMEAFA
HARDCASTLE, PHILIP JIMANOR AND
ROMA LOKKO.
DR. DOMINIC AYINE ,DEPUTY
ATTORNEY-GENERAL WITH MISS GRACE
OPPONG, PRINCIPAL STATE ATTORNEY
AND CEPHAS MOTEY FOR 3RD
DEFENDANT.
JUDGMENT
DOTSE JSC
Our respected and eminent
sister, Sophia Akuffo (Ms) JSC
in the unanimous ruling of the
Supreme Court in the case of
Republic v High Court,
(Commercial Division), Accra;
Ex-parte Attorney-General
(Balkan Energy Ghana Limited and
others -Interested Parties)
[2011] 2 SCGLR 1183 held
as follows:-
“According to the
Merriam-Webster Dictionary of
Law (1996) to interpret is to
explain the meaning of something
in order to determine intent.
For the purposes of
interpretation, “intent” more
often than not also includes
scope. Now in Attorney
General v Faroe Atlantic Co.
Limited (supra) this court
expounded the meaning of the
expression “an international
business or economic transaction
to which the Government is a
party”, as used in article 181
(5), within a particular
context, i.e. an agreement
between the Government of Ghana
and a foreign company.
Where, in a subsequent matter, a
party contends that the scope of
the provision is broader and
covers an agreement between the
Government of Ghana and a
domestic party of a certain
type, then the intent and
scope of the provision once
again falls to be determined,
not by the High Court, but by
the constitutionally –
clothed court, the Supreme
Court. The matter is not
merely one of applying the
provisions of article 181 (5) in
accordance with and along the
lines of the previous
interpretation.”
Emphasis
Has the Supreme Court since the
decision in the case of
Attorney-General v Faroe
Atlantic [2005-2006] SCGLR 271
and Balkan Energy
cases referred to (supra),
had occasion to again interpret
article 181 (5) provisions of
the Constitution 1992 in a
manner as to make it unnecessary
for this court’s original
jurisdiction to be invoked in
the circumstances in which it
has been done?
Such an opportunity occurred for
the Supreme Court to bring
sufficient clarity and give
guidance to the scope of the
article 181 (5) provisions of
the Constitution in a matter
that involved the definition of
international business and that
decision gave sufficient
guidelines on what a court is to
do when faced with what set of
criteria to use, i.e. a road map
as it were.
That case is the decision of
this Court in Attorney
General v Balkan Energy [2012] 2
SCGLR 998 at 1034 where
this court interpreted article
181 (5) as follows:-
“We think that a business
transaction is “international”
within the context of Article
181 (5) where the nature of
the business which is the
subject-matter of the
transaction is international in
the sense of having a
significant foreign element or
the parties to the transaction
(other than the Government) have
a foreign nationality reside in
different countries or, in the
case of companies, the place
of their central management and
control is outside Ghana.”
Emphasis
We think it is useful to refer
extensively also to portions of
the decision of the Supreme
Court in the Balkan Energy case
referred to (supra) on page 1029
of the report thus:-
“The term international business
or economic transaction to which
the government is a party” as
stated in article 181(5) of the
Constitution, if purposively
construed, should not lead
necessarily to the result that
only agreements between entities
resident abroad and the Ghana
government can be embraced
within the meaning of the term.
Given the complexity of
contemporary international
business or economic
transactions there will be
transactions of such a clear
international nature that they
should come within any
reasonable definition of an
international business or
economic transaction, but which
may have been concluded with the
Ghana government by an entity
resident in Ghana. In such a
situation, our view is that the
substance, rather than the form,
should prevail. What we have
just said begs the question of
what “international” means. In
this connection, we think that
there is the need to combine
both the nature of the business
or economic transaction
criterion and the parties
criterion proposed by the
plaintiff in his submission, in
order to formulate a test for
determining what transactions
come within the ambit of article
181 (5) of the 1992
Constitution”. Emphasis
The above guidelines set out
supra will serve as a yardstick
when the reliefs and the facts
of the case herein are put in
perspective.
A useful yardstick or guideline
that is deducible from the above
is that two criteria exists for
the determination of whether a
transaction is an international
business transaction pursuant to
article 181 (5) of the
Constitution.
These are
1.
Purposive interpretation which
will use the substance
rather than the form criteria.
What this means is that, in
determining whether an
international business
transaction entered into with
the Government and a resident
company in Ghana is an
international transaction, the
above criteria should be used,
i.e. substance or form
2.
In determining these criteria,
it is necessary to combine both
the nature of the business
transaction and the parties
criteria.
In the instant transactions,
what has become evident is the
reliance on the enabling Acts of
incorporation of the 1st
and 2nd Defendants.
RELIEFS AND FACTS OF THE CASE
A core and germane issue is
whether in view of the various
interpretations given by this
court in the following cases on
the true meaning and intent of
article 181 (5) of the
Constitution, the transactions
herein still have to be brought
to this court for interpretation
or if sufficiently interpreted
already by this court, then
applied by the High Court.
See cases of Attorney
General v Faroe Atlantic
Limited, (supra) Attorney
General v Balkan Energy Ghana
Limited and Others, [2012] 2
SCGLR 998, Amidu (No. 2) v
Attorney-General, Waterville
Holdings (BVI) Limited and
Woyome (No. 2) 2013-14 1 SCGLR
606 and Klomega (No. 2) v
Attorney-General & GPHA (No. 2)
[2013-14] 1 SCGLR 581.
The reliefs which the plaintiff
claimed before this court are as
follows:-
The Plaintiff by a writ dated
the 19th June, 2015;
invoked the original
jurisdiction of this court under
Articles 2(1) & 130 of
the Constitution 1992 seeking
the following reliefs:
1.
Upon a true and proper
interpretation of Article 181(5)
of the 1992 Constitution, the
execution of the Power Purchase
Agreement (PPA) between ECG and
Karpower is an International
Commercial business of which
government is a party; and
failure and or refusal to seek
Parliamentary approval prior to
execution of same amount to
usurpation of the Constitutional
mandate of Parliament.
2.
Upon a true and proper
interpretation of Article 181(1)
of the 1992 Constitution and
Section 7(3) (a) and (b) of
Petroleum Revenue Management
Act, 2011 (Act 815) the issuance
of Hundred Million USD bank
guarantee by Ecobank upon an
application by GNPC in support
of a PPA between ECG and
Karpower without prior
Parliamentary approval is
unconstitutional, void and of no
legal effect.
3.
Upon a true and proper
interpretation of Article 181(5)
of the 1992 Constitution, the
PPA between ECG and Karpower
constitute an International
Commercial Transaction of which
government is a party; and the
failure by the government to
seek prior Parliamentary
approval by executing same is
unconstitutional void and of no
legal effect.
4.
Upon a true and proper
interpretation of Article 181(1)
of the 1992 Constitution, and
Section 7(3) (a) and (b) of
Petroleum Revenue Management
Act, 2011 (Act 815), GNPC being
wholly owned by the people of
Ghana cannot issue a bank
guarantee, procure any loan for
commercial purpose or provide
any funding to any entity
whether private or public,
unless same is approved by
Parliament in accordance with
Order 171 of the Standing Orders
of Parliament.
5.
Upon a true and proper
interpretation of Article 181(1)
& (5) of the 1992 Constitution,
the procurement of loans by GNPC
and the execution of
International Commercial
agreement remain part of
government business and the
liability of government; and any
purported exemption granted to
GNPC through any legislation to
proceed in any transaction
without Parliamentary approval
is unconstitutional, void and of
no legal effect.
6.
Upon a true and proper
interpretation of Article 181(1)
of the 1992 Constitution, and
Section 7(3)(a) and (b) of the
Petroleum Revenue Management
Act, 2011 (Act 815), and Order
171 of the Standing Orders of
Parliament, the issuance of a
bank guarantee by GNPC in
support of the PPA between ECG
and Karpower without prior
parliamentary approval amount to
usurpation of the Constitutional
mandate of Parliament.”
FACTS
The facts, upon which the
Plaintiff, a sitting member of
Parliament, anchored his case
are as follows:-
According to the Plaintiff, the
1st Defendant entered
into a Power Purchase Agreement
(hereafter PPA) with Karpower
(Ghana) Limited, which was
guaranteed by the 2nd
defendant and facilitated by the
government of Ghana through a
letter of comfort dated 3rd
February 2015, which according
to the Plaintiff, should have
been laid before Parliament for
approval. The Plaintiff further
contended that the said
agreement being an international
commercial transaction to which
the Government is a party, ought
to have been laid and approved
by Parliament pursuant to
article 181 (5) of the
Constitution 1992.
The Plaintiff further contended
that, the 1st
Defendant even though a limited
liability company cannot be said
to be entirely independent
because the Government of Ghana
virtually controls it’s
activities as it is entirely
owned and funded by the
government.
The Plaintiff argued that, the
unconstitutionality of the
transactions were brought to the
attention of Parliament, and His
Excellency The President. The
Plaintiff referred to exhibits D
and E to which are Parliamentary
Debates (Hansard) of Friday 20th
February 2015 in which counsel
for plaintiff unsuccessfully
raised this issue on the floor
of the house and a letter from
him to the President acting as
Solicitor for the plaintiff on
the same PPA, subject matter of
the instant suit. .
The arguments of Plaintiff are
that, the decision of Government
to approve through cabinet the
PPA for the supply of 450
megawatts of electricity without
referring same to Parliament for
consideration or approval
constitutes usurpation of the
constitutional mandate of
Parliament as enshrined in
article 181 (5) of the
Constitution.
In respect of the 2nd
Defendant, the Plaintiff argued
that the issuance of the bank
guarantee by them ought to have
been approved by Parliament in
accordance with article 181 (1)
of the Constitution and sections
7 (3) (a) and (b) of the
Petroleum Revenue Management Act
2011 (Act 815).
DEFENDANT’S RESPONSE
In response, the Defendants
denied that the Plaintiff is
entitled to the reliefs he
claims before the court. For
example, it was contended on
behalf of the 1st
Defendant that it is a limited
liability company registered
under the Companies Act 1963
(Act 179), by virtue of the
Statutory Corporations
(Conversion to Companies) Act
1993 (Act 461). They contended
rightly in our view that, this
conversion implied that the 1st
Defendants are separate and
distinct from it’s sole
shareholder, (the Government),
and therefore it’s acts cannot
be attributed to the government.
Furthermore they contended that
it’s operations are funded
solely from it’s own internally
generated funds, and not from
the consolidated fund.
According to the Defendants, the
internationality of an agreement
such as the PPA in this instance
is not the only criteria for
holding that such a transaction
must be laid before Parliament
for approval. A key
ingredient they contend is that,
the government must be a party
which was lacking in this
instance. They therefore
contended that, where for
instance the 2nd
Defendant is borrowing money it
does so on the strength of it’s
own balance sheet without
government support. Such an
agreement or transaction they
contend, cannot be brought
within the purview of article
181 (5) of the Constitution.
It is the case of the 2nd
Defendant that, having obtained
the approval of their own board,
that act alone is sufficient
assurance of the validity of the
transaction. They contend
further that, the enabling
statute of the 2nd
Defendant’s has made it a
distinct legal personality
established to operate as a
commercial concern and separate
from government and its agencies
and departments.
There is no doubt that the 1st
Defendants had been converted
into a limited liability company
by the “Statutory Corporations
(Conversion to corporations)
Act, 1993 (Act 461). The
schedule to the said Act 461
lists Electricity Corporation of
Ghana as the 7th
Corporation therein to have been
converted among a total of 32
such state corporations.
In this respect, we wish to
refer to the long title to Act
461 which reads thus:-
“An Act to provide for the
conversion of specified
statutory corporations into
companies limited by shares;
to provide for the vesting of
the assets and liabilities of
the statutory corporations in
the successor companies; to
provide for the holding of
shares in the companies and for
other related matters.”
The law made it quite clear that
the 1st Defendants
have become a limited liability
company under the Companies Act,
1963 (Act 179), reference
section 1 of Act 461.
Section 2 thereof of Act 461
vests all assets, properties,
rights, liabilities and
obligations of the former
statutory corporation in the new
“successor company” and that is
the 1st Defendant. A
perusal of Act 461 gives us
clear indications that, the
Minister of Finance had been
given clear directives to ensure
that the said converted
statutory corporations such as
the 1st Defendants
are duly converted into limited
liability companies and all
references to its former legal
entity shall cease to exist
after the coming into force of
the successor company.
In respect of the 2nd
defendants, there is no doubt
that they have been established
by the Ghana National Petroleum
Corporation Act 1983 (PNDCL 64).
Sections 1 (1) (2) and (3) of
PNDCL 64 created the 2nd
Defendants as a legal entity, a
body corporate, having perpetual
succession, a common seal,
capable of suing and being sued
as a corporate entity.
Section 1 (3) of PNDCL 64 states
as follows:-
“The corporation may, for and in
connection with the carrying out
of its objects, acquire, hold
and dispose of movable and
immovable property and may
enter into a contract or any
other transactions”.
Emphasis
We have looked at sections 2 and
3 which deals with the objects
and functions of the 2nd
defendants, as well as their
powers as a corporate entity. It
is also important to note that
the 2nd defendants
have been set up as a commercial
venture, reference section 4 of
PNDCL 64. To this end, it has a
Board of Directors as stipulated
in sections 5, 6, 7 and 8 of the
Act which deals with
qualifications of the Directors,
meetings of the Board and
functions thereof. For example,
section 8 (1) of the Act states
as follows:-
“The Board shall, subject to
this Act, have general control
of the management, property,
business and funds of the
corporation and any other
affairs and concerns of the
corporation.”
Emphasis
In this respect, we are
satisfied that there is infact
authority vested in the 2nd
Defendant’s Board of Directors
to have entered into the type of
transaction they entered into,
the subject matter of this suit.
The role of Government is not
lost on us, as there are
sufficient indications in
sections 16, 21, 22 and 24 which
all deals with, Government
advances and grants payments
into the consolidated fund,
importation of goods and the
role of the Minister of Finance
therein, and actions requiring
ministerial approval
respectively.
In critically assessing the
enabling statutes of the 1st
and 2nd defendants,
we are clear in our minds that
they are juristic persons
capable of entering into the
transactions into which they
entered into herein.
The role of Government if any in
our mind does not merit the
“alter ego” relationship
mentioned in the Klomegah (No.
2) cases supra to qualify the
transactions as having the
Government as a party. The
ministerial role of the 1st
and 2nd defendants is
no more than an oversight
responsibility, period.
PRELIMINARY ISSUES
1.
The 2nd Defendant
argued that the bank guarantee
issued on their instructions
cannot form the basis of the
invocation of the original
jurisdiction of this court
because the matter does not
raise any constitutional
interpretation or enforcement
issues, it is if at all, a
breach of a statute.
2.
Secondly, the 2nd
Defendant argued that the issues
raised by the Plaintiff although
dressed as a constitutional
issue in essence does not
require interpretation but
rather application of the
Constitution. This is because
this court has already
interpreted and given guidelines
in a plethora of previous
decisions which have to be
applied to indicate that the
transactions herein do not
require laying before Parliament
as provided for under article
181 (5) of the Constituiton.
MEMORANDUM OF ISSUES
The following memorandum of
issues were settled and agreed
upon by the parties. These are:-
1.
Whether or not the original
jurisdiction of the supreme
Court under Article 130(1) has
been wrongfully invoked.
2.
Whether or not 1st
Defendant is “Government” within
the meaning and intent of
Article 181 of the Constitution
as to make its international
business transactions amenable
to the said Article.
3.
Whether or not the Power
Purchase Agreement between 1st
Defendant and Karpowership Ghana
Company Ltd constitutes an
international business or
economic transaction of which
the Government of Ghana is a
party within the meaning of
Article 181(5) thereby requiring
Parliamentary approval
4.
Whether or not 2nd
Defendant is “Government”
within the meaning of Article
181 of the 1992 Constitution as
to make the said Article
applicable to it.
5.
Whether or not the guarantee
issued by 2nd
Defendant in favour of
Karpowership Ghana Co Ltd
constitutes an international
business or economic transaction
and/or a loan within the
respective meanings of Article
181(5) and 181(3) so as to
require Parliamentary approval
within the meaning of the
above-mentioned constitutional
provisions and the Loans Act,
1970 (Act 335).
6.
Whether or not the bank
guarantees issued at the
instance of 2nd
Defendant offend Article 181(5)
of the Constitution and Section
7(3(a) & (b) of the Petroleum
Revenue Management Act, 2011
(Act 815).
After a perusal of the reliefs,
the memorandum of issues filed
as well as the pleadings of the
parties in this case, we cannot
help but agree with the 2nd
Defendants when they stated in
their statement of case that
the issues germane to this case
are the following:-
a.
Whether or not the power
purchase agreement (PPA) between
1st Defendant and
Karpowership Ghana Company
Limited (Karpower) constitutes
an international commercial
business within the meaning and
contemplation of Article 181
(5), and therefore requires
parliamentary approval.
b.
Whether or not the agreement
made between 2nd
Defendant and Karpower to supply
fuel to Karpower in relation to
the PPA and the guarantee issued
by 2nd Defendant in
favour of Karpower in support of
the PPA constituted
international commercial
business and a loan within the
respective meanings of Articles
181 (5) and 181 (3) so as to
require parliamentary approval.
But before we proceed to a
discussion of the above issues,
which we think has the potential
of disposing of the entire suit,
we are of the considered opinion
that, there is the need to
review the scope of the original
jurisdiction of this court as
has been formulated and followed
in a long line of respected
authorities.
The circumstances under which
the original jurisdiction of the
Supreme Court may be invoked are
well stated now. In the
Republic v Special Tribunal; Ex
Parte Akosah [1980] GLR 529
at 605, Anin JA, after reviewing
the existing law, stated the
legal position thus:-
“From the foregoing dicta, we
would conclude that an issue of
enforcement `or interpretation
of a provision of the
Constitution under article 118
(1) (a) arises in any of the
following eventualities:-
a.
Where the words of the provision
are imprecise or unclear or
ambiguous. Put in another way,
it arises if one party invites
the court to declare that the
words of the article have a
double-meaning or are obscure or
else mean something different
from or more than what they say.
b.
Where rival meanings have been
placed by the litigants on the
words of any provision of the
Constitution.
c.
Where there is a conflict in the
meaning and effect of two or
more articles of the
Constitution, and the question
is raised as to which provisions
shall prevail.
d.
Where on the facts of the
provision, there is a conflict
between the operation of
particular institutions set up
under the Constitution, and
thereby raising problems of
enforcement and of
interpretation
On the other hand, there is no
case of “enforcement or
interpretation” where the
language of the article of the
Constitution is clear, precise
and unambiguous. In such an
eventually, the aggrieved party
may appeal in the usual way to a
higher court against what he may
consider to be an erroneous
construction of those words; and
he should certainly not invoke
the Supreme Court’s original
jurisdiction under article 118.
Again where the submission made
relates to no more than a proper
application of the provision of
the Construction to the facts in
issue, this is a matter for the
trial court to deal with; and no
case for interpretation arises.”
Emphasis
See also the following cases
which all follow the Ex-parte
Akosah case (supra). In
Aduamoa II v Twum II [2000]
SCGLR 165 at 171 where
Acquah JSC (as he then was)
stated and re-emphasised the
said views as follows:-
“In summary then, whereas the
original jurisdiction to
interpret and enforce the
provisions of the 1992
Constitution is vested solely in
the Supreme Court, every court
and tribunal is duty bound or
vested with jurisdiction to
apply the provision of the
Constitution in the adjudication
of disputes before it. And this
jurisdiction is not taken away
merely by a party’s reference to
or reliance on a provision of
the Constitution. If the
language of that provision is
clear, precise and unambiguous,
no interpretation arises and the
court is to give effect to that
purpose.”
Emphasis
See also the cases of
Bimpong Buta v General Legal
Council [2003-2004]
SCGLR 1200 and the
Practice Direction that was
given by the Supreme Court as
Practice Direction (Practice and
Procedure of the Supreme Court)
June 15, 1981 reported in 1981
GLR 1 as follows:-
“It is also to be noted that
where a cause or matter can be
determined by a superior court,
other than the Supreme Court,
the jurisdiction of the lower
court should first be invoked.
The Supreme Court may dismiss
any such cause or matter, to the
Supreme Court in first
instance”.
The Supreme Court would not
entertain any cause or matter
dressed up as a constitutional
issue which in essence or
substance is an issue cognizable
by a lower superior court.
Punitive costs will be awarded
which in such cases shall be
paid personally by counsel or by
the party responsible for
bringing the cause or matter to
the Supreme Court.” Emphasis
See also the judgments of both
the majority and the minority in
the unreported Supreme Court
case No. JI/5/2015 intitutled
Judicial Service Staff
Association v Attorney-General
and 2 others, dated 23rd
June 2016. Which also dealt with
this jurisdictional issue of the
Supreme Court.
Having discussed in detail, the
scope of the original
interpretative and enforcement
jurisdictions of the Supreme
Court, it is apparent that, this
court is not a clearing house to
assume jurisdiction which
otherwise belongs to other lower
superior courts. It must be
noted that, this court exercises
it’s jurisdiction only in those
manifestly clear and obvious
cases that are deserving.
APPLICABILITY
In our opening pages in this
rendition, we referred in
extenso to our previous decision
in the Balkan Energy cases
(supra). It is important to
reiterate the point that a later
decision of this court in the
case of Klomegah (supra) had
already interpreted the scope of
all the issues raised in the
instant case.
This was when similar matter
came up before this court for
determination in Felix
Klomegah v Ghana Ports and
Harbours Authority & Another
(supra) where Dr. Date-Bah JSC,
reading the unanimous decision
of the court, held that:
“The cumulative points made by
the Respondents above amount to
an irresistible case that in the
context of article 181 (5) and
the facts of this case, the 2nd
Respondent (Ghana Ports and
Harbours Authority) is not to be
regarded as coming within the
meaning of “Government”. As
pointed out by the Respondents,
to subject statutory
corporations with commercial
functions to the Parliamentary
approval process prescribed in
article 181 (5) would probably
increase the weight of
Parliament’s responsibilities in
this regard to unsustainable
level. Accordingly, it is
reasonable to infer that the
framers of the 1992 Constitution
in the context of article 181
(5) should mean, ordinarily, the
central government and not
operationally autonomous
agencies of government. Where an
agency has a separate legal
personality distinct from
central government, it usually
comes under sectorial
ministerial supervision. The
Board of the corporation and the
appropriate Ministry should then
exercise oversight over its
international business or
economic agreements. That
oversight should be exercised
within the context of the
procurement laws of this
country. Parliament would be
sucked into unnecessary minutiae
if it were to have the function
of approving the international
business or economic agreements
of statutory corporations.
That is why “Government”, in the
context of article 181 (5),
should be interpreted
purposively to exclude
corporations such as the 2nd
Defendant. Emphasis
We are also not unaware of the
caution given by the Supreme
Court in the same Klomegah No. 2
case (supra) wherein the court
stated as follows:-
“The Supreme Court would
interprete article 181 (5) of
the 1992 Constitution as meaning
that generally that contracts
of statutory corporations were
not within the ambit of the
provisions. However, in
exceptional circumstances,
through the application of a
customized Ghanaian version of
the doctrine of “alter ego”, the
contracts of a Ghanaian
statutory corporation could be
brought within the intendment of
article 181 (5). Whilst the
court did not consider that the
facts of the instant case could
reasonably be interpreted as
following within the notion of
an agency of government
constituting an alter ego for
the Government, the court would,
nevertheless consider that
the idea that a statutory
corporation, though legally
distinct from the Government,
could in appropriate
circumstances be held to be an
alter ego of the Government was
one that should serve the useful
purpose of an exception to the
general rule as stated. Bridas
SAPIC v Government of
Turkmenistan [2006] 447 F 3d 411
cited. Emphasis
We have in our deliberations and
decision making process
considered all the caveat that
the Supreme court warned itself
about. As a result, we have
carefully taken into
consideration the legal nature
of the 1st and 2nd
Defendants from their enabling
statutes, already referred to
supra.
We have also taken into deep
consideration the role of the 2nd
defendant in securing the bank
guarantee for the entire loan
transaction for the purchase of
the Karpowership as well as the
role of Government as
exemplified in the letter of
Comfort referred to supra. With
all the above considerations,
the fact still remains that, the
legal entities of the 1st
and 2nd defendants
remains the same and their
positions are the same as that
Ghana Ports and Harbours
Authority the Defendants
therein, in the Klomegah case
(supra).
We have also considered the
further warning by the Supreme
Court in the Klomegah case
(supra) where they opined thus:-
“The Supreme Court should,
however, not lay down an
absolute rule. if on the facts
of a particular case, central
government were found to have
made a particular statutory
corporation its alter ago under
the circumstances of that
particular case, the possibility
of holding that, that statutory
corporation would come within
article 181 (5) should not be
rule out.”
Page 586 of the report. Emphasis
All the above words of caution
have been taken into
consideration vis-à-vis the
plaintiff’s complaint about the
complicity of executive control
i.e. cabinet in the entire
transactions involving the
Karpower and the 1st
and 2nd Defendants.
Despite the fact that the
Government stands to benefit
tremendously from the successful
operation and implementation of
the transactions entered into
with the PPP i.e. purchase of
the Karpowership, the fact still
remains that the mechanism
through which the funding was
arranged still falls within the
remit of the 1st and
2nd Defendants under
their enabling enactments.
From the nature of the
transactions in the instant
case, it is clear that the 1st
and 2nd Defendants,
as juristic persons had the
capacity to enter into the
transactions they entered into
with the relevant institutions
without seeking parliamentary
approval as stipulated in
article 181 (5) of the
Constitution.
This is because, the position of
the 1st and 2nd
defendants herein are just like
those of the Ghana Ports and
Harbours Authority Defendants
therein in the Klomegah (No.2)
case (supra). That being the
case, we are of the considered
view that the role of Government
in the instant transactions
exemplified by the letter of
Comfort does not really qualify
Government to be made a party
using all the criteria’s
mentioned in the said judgment.
These are the substance or form,
or the nature and party
criteria.
Looking critically at the nature
of the transactions, we are
unable to conclude that the role
of government therein can be
likened to the Ghanaian version
of an alter ego. We do not see
any such role, and this is
because the said role is not
inconsistent with the role
assigned Government in the
enabling Acts of Incorporation
of the said Defendants. In
essence, once the Board of
Directors of the Companies have
approved the said transactions
and there is no evidence that
the Boards have not approved of
these transactions, then
afortiori, it follows that they
approved of them and entered
into those transactions on their
own strengths and capacities.
Taking a cue from the decided
authorities referred to supra
and also from the settled
practice of this court, what is
certain is that, the above
definitions of what constitutes
“international business” and
also, whether an entity, such as
the 1st and 2nd
Defendants herein are
coterminous with “Central
government” such as to bring
them into line and subsequently
under the purview of article 181
(5) of the Constitution arises
and calls for definition and
pronouncement from this court.
However, in real terms this
transaction does not call for
fresh interpretation as the
issues raised in article 181 (5)
have been overflogged by this
court in it’s previous decisions
Consequently, we have strained
ourselves to bring our minds to
understand the arguments of
plaintiff in relation to the
reliefs he claims vis-à-vis the
settled judicial decisions
referred to supra, but we are
more than convinced that the
plaintiff has not been able to
shift our minds to depart from
our previous decisions.
For example, it would under the
circumstances mean that, the
definition of “international
business” in the Balkan
Energy case (supra) does not
bring the transactions in which
the 1st and 2nd
defendants were involved in the
acquisition of the PPA for the 1st
Defendants to come under the
searchlight of article 181 (5).
Similarly from the decisions and
definitions of what government
qua government actually means
and in line with the decision in
the Klomegah case, (supra) the
1st and 2nd
defendants, being limited
liability entities with their
own enabling statutes and
funding arrangements are
separate and distinct from
Central Government as envisaged
in article 181 (5) of the
Constitution.
Even though we might sound to be
repetitive, it is useful to
quote portions of the rendition
of the words of our illustrious
Dr. Date-Bah JSC in the Klomegah
case (supra) as follows:-
“As pointed out by the
Respondents, to subject
statutory corporations with
commercial functions to the
Parliamentary approval process
prescribed in article 181 (5)
would probably increase the
weight of Parliament’s
responsibilities in this regard
to unsustainable level.
Accordingly, it is reasonable to
infer that the framers of the
1992 Constitution did not intend
such a result. “ Emphasis
We entirely agree with the above
words and adopt them as our own.
This is because we also reason
that, to go contrary to the
above would not only over burden
Parliament, but will also lead
to very absurd results as
Parliament, would in those
instances be interfering in the
enabling statutes of the various
Statutory Corporations which
have now been converted into
limited liability companies
under the Companies Act like the
1st Defendants.
In a nutshell, it is certain
that the Plaintiff, even though
has very good intentions of
ensuring compliance with
relevant constitutional
provisions, to wit article 181
(1) (2) (3) (4) and (5)
provisions of the Constitution
1992, has not been successful to
establish any clear breaches of
the Constitution vis-à-vis the
transactions upon which he has
anchored his case.
Instead, the crux of the
complaint seems to us to be on
perceived breaches of section 7
(3) (a) and (5) of the Petroleum
Revenue Management Act, 2011
(Act 815) and the Loans Act,
1970 (Act 335).
However, the PPA in this case
between the 1st
defendants and Karpowership
Ghana Company Limited does not
constitute an international
business transaction with
Government entity to require
compliance with article 181 (5)
of the Constitution. Any
breaches if at all with (Act
815) the Petroleum Revenue
Management Act, (Act 335) will
not be justiciable in this
court.
More importantly, the Supreme
Court directed in the Klomegah
No. 2 case supra as follows:-
Per curiam” With the
determination of this case, it
is now our expectation that
article 181 (5) would lend
itself to application by the
High Court, rather than further
interpretation by this court.
Legal advisers to foreign
entities that contract with the
Government of Ghana need to be
aware of this important case law
in order to guide them
appropriately on the Ghanaian
law on this issue.” Emphasis
We might just as well add that,
legal practitioners in Ghana
should take guidance from the
above decision and advice their
clients whenever they are
consulted.
This will prevent them from
rushing to this apex court with
a view to turning it into a
clearing house. We would
henceforth no longer countenance
this attitude of legal
practitioners and parties for
that matter turning this Supreme
Court into a clearing house for
all matters which appropriately
should have been initiated in
courts lower to the Supreme
Court. We daresay that, indeed
the time has come for this
court to crack the whip by
ensuring that it’s jurisdictions
in article 2 (1) and 130 (1) of
the Constitution which are
frequently invoked by parties
are consistent with previous
decided cases on the point.
CONCLUSION
In the premises, the plaintiff’s
case is dismissed in it’s
entirety. This is because in our
opinion, the transactions to
which this particular case
relates is not an
“international business or
economic transaction” as
envisaged in article 181 (5) of
the Constitution, and as
variously interpreted by this
court in several decisions
referred to supra.
It should be noted that, the 1st
and 2nd Defendants,
being separate and distinct
legal entities from their
enabling statutes referred to
supra, it follows that the role
of Government as portrayed
through the letter of comfort
does not connote an
interpretation such as would
link them to Government.
The transactions mentioned in
the instant case involving the 1st
and 2nd Defendants is
thus not an international
business or economic transaction
as envisaged under article 181
(5) of the Constitution.
Furthermore, the 3rd
Defendant’s letter of comfort
does not qualify the
transactions as international
business or economic such as to
bring them under the purview of
article 181 (5) of the
Constitution.
For the above reasons, the
Plaintiff’s action fails and is
dismissed in their entirety.
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N.S GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO-BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
ALEXANDER KWAMENA AFENYO MARKIN
WITH KORKOR OKUTU FOR THE
PLAINTIFF.
JOE SLOVO TIA FOR THE 1ST
DEFENDANT.
TONY LITHUR FOR 2ND
DEFENDANT WITH MRS. EMEAFA
HARDCASTLE, PHILIP JIMANOR AND
ROMA LOKKO.
DR. DOMINIC AYINE ,DEPUTY
ATTORNEY-GENERAL WITH MISS GRACE
OPPONG, PRINCIPAL STATE ATTORNEY
AND CEPHAS MOTEY FOR 3RD
DEFENDANT.
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