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1. The issue for
determination in this
application is not novel to our
jurisprudence.
2. It involves once
again the determination of
whether a question or an issue
before any other court in the
land relating to the enforcement
and interpretation of the
constitution of Ghana 1992 ought
to be referred to the Supreme
Court for such interpretation or
enforcement in accordance with
Article 130(1) of the
Constitution whenever such issue
or question arises.
3. For a better
understanding of the instant
application, it is important to
trace briefly the history of
this dispute. The
Plaintiff/Applicant herein is
the Attorney General of the
Republic of Ghana who commenced
action by writ in this court for
reliefs endorsed in the writ of
summons. There has been in the
course of pursuing this suit an
international arbitration in
accordance with a clause of the
contract between the parties.
Without prejudice to the
arbitration process, issues were
joined and the suit set down for
trial. While the trial was yet
to commence the
Plaintiff/Applicant filed this
application seeking an order of
this court to refer the
following questions to the
Supreme Court.
“(a). Whether or not the
Power Purchase Agreement dated
27 July 2007 between the
Government of Ghana and the 2nd
Defendant constitutes an
international business
transaction within the meaning
of Article 181(5) of the 1992
constitution and
(b). Whether or not the
arbitration agreement contained
in clause 22 – 2 of the Power
Purchase Agreement dated 27 July
2007 between the Government of
Ghana and the 2nd
Defendant constitutes an
international business
transaction within the meaning
of Article 181(5) of the 1992
Constitution.
(iii). Whether or not in
view of a legal opinion and a
letter dated 26 October 2007
respectively issued by the
Plaintiff, the Plaintiff is
estopped from seeking an
enforcement interpretation or
application of the terms of
Article 181(5) of the 1992
Constitution.
(iv). Whether the defence
of estoppels is available in
matters regarding the
enforcement, interpretation or
application of the terms of the
constitution”.
4. Embodied in the
motion before me is a relief for
an order of stay of proceedings
pending the determination of the
referral to the Supreme Court
and other consequential reliefs
for the expeditious
determination of the
application.
5. There is in support
of the application an affidavit
in support which has
exhaustively traced the history
of this dispute between the
parties.
6. In paragraph 18 of
the affidavit in support, the
Plaintiff/Applicant has set out
the reasons why the application
has to be filed immediately
after the pretrial conference it
being a constitutional issue of
interpretation which is the
exclusive preserve of the
Supreme Court and which cannot
therefore lie within the
jurisdiction of the trial High
Court.
7. The
Defendants/Respondents has
opposed the application and in
an affidavit in opposition
deposed to by a lawyer in the
firm of lawyers for the
Defendants, the Defendants
contend inter alia that the
Supreme Court has considered and
interpreted Article 181(5) of
the constitution and therefore
it requires no further
interpretation. The
Defendants/Respondents further
contend in their affidavit in
opposition that there is no
statutory or constitutional
requirement for parliamentary
approval of arbitration
agreements. I donot with all due
respect to
Defendants/Respondents’ counsel
consider as relevant the other
matters set out in the
Defendants/Respondents affidavit
in opposition for the
determination of this
application.
8. Since the coming into
force of the 1992 constitution,
a number of questions have been
referred to the Supreme Court
involving the interpretation of
one or more of the provisions of
the constitution. Authorities
therefore abound on the subject
and the Supreme Court has by its
pronouncements in previous cases
set down guidelines which will
regulate the exercise of its
exclusive jurisdiction pursuant
to Article 130(1) of the
Constitution of Ghana 1992.
9. In their legal
submissions during the hearing
of this application, both
counsel have referred me to the
decision of the Supreme Court in
ATTORNEY GENERAL VRS. FAROE
ATLANTIC CO. LTD. [2005 – 2006)
SCGLR 271 which significantly
was not decided by the Supreme
Court in the exercise of its
referral jurisdiction, but its
appellate jurisdiction arising
from the decision of the court
of Appeal. I shall refer to the
decision in FAROE ATLANTIC later
in this ruling.
10. In the case of the
REPUBLIC VRS. SPECIAL TRIBUNAL
EX -PARTE AKOSAH [1980] GLR 592
the then Court of Appeal set
down the following as the
grounds on which the issue of
enforcement or interpretation of
the 1979 Constitution would
arise, and I must say that the
grounds set out are relevant and
applicable even under the
current 1992 Constitution.
The eventualities
the then Appeal Court set down
are:
(a). Where the words of a
provision were imprecise or
unclear or ambiguous. Put in
another way, it would arise if
one party invited the court to
declare that the words of the
article had a double meaning or
were obscure or else meant
something different from or more
than what they said;
(b). Where rival meanings
had been placed by the litigants
on the words of any provision of
the constitution.
(c.) Where there was a
conflict in the meaning and
effect of two or more articles
of the constitution and the
question was raised as to which
provisions should prevail and
(d). Where on the face of
the provisions there was a
conflict between the operation
of particular institutions set
up under the constitution”
11. It is against the
background of these guidelines
and other decisions of the
Supreme Court under the 1992
Constitution that I will
consider this application in
context given the grounds set
out in the Plaintiff/Applicant’s
affidavit for an order for
referral by this court.
12. In the latter case of
THE REPUBLIC VRS. HIGH COURT
(FAST TRACK DIVISION) ACCRA
EXPARTE ELECTORAL COMMISSION
(METTLE NUNOO AND OTHERS)
INTERESTED PARTIES, Wood JSC (as
she then was) held inter alia
that:
“On the authorities, the
question as to whether on the
facts of any given case, real or
genuine interpretative issues
for referral has arisen depends
among other things on the nature
of the pending action, the
reliefs sought as well the
pleadings. And on this, a
further useful criterion is
whether or not the action is one
which has been neatly clothed as
a case in which our original
jurisdiction is required.
Another critical factor is
whether or not a disputed
interpretation lies at the heart
of the action. If it does, it
qualifies for our intervention.
Indeed, it was precisely because
of the parties’ divergent and
irreconcilable views on the true
meaning of the relevant
provisions that in the AKOSAH
case [1980] GLR 592 CA the court
thought that a genuine issues of
interpretation had arisen”
13. The issue for
determination in this
application is whether the
parties to the substantive
action hold divergent views on
the interpretation to be given
to the words or clause(s) of the
constitution for a situation of
a referral for interpretation to
arise. Another consequential
question from the authorities is
whether the issue raised for
referral has already been
subjected to interpretation by
the Supreme Court in which case
notwithstanding the relevance of
the question it would be
unnecessary and indeed a moot
question to refer for another
interpretation by the Supreme
Court.
14. With respect to the
earlier interrogatory I donot
think the Plaintiff/Applicant’s
issues set out are one of
divergent positions by the
parties with respect to the
interpretation of a provision of
the Constitution. In my view it
is with respect to a particular
issue of whether or not the
contract between the Plaintiff
and the 2nd Defendant
ought to have been subjected to
parliamentary approval in
accordance with Article 181(5)
of the 1992 Constitution.
15. That issue to my mind
does not give rise to a
situation of a referral to the
Supreme Court where there is an
existing precedent on the
interpretation of the Article of
the constitution concerned and
may be properly determined by
this court by reliance on
judicial precedent within the
context of the particular facts
of the case. It may also be
subjected to determination by
the Supreme Court itself in the
exercise of its original
jurisdiction in accordance with
Article 2(1) of the constitution
if same is properly invoked.
16. The case of ATTORNEY –
GENERAL VRS. FAROE offers an
answer. In that case which as I
had observed the Supreme Court
exercised an appellate and not a
referral jurisdiction, the
Supreme Court held inter alia at
Holding 5 that:
The plain meaning of clause (5)
of article 181 of the 1992
constitution would appear to be
that where the Government of
Ghana entered into “an
international business or
economic transaction” it must
comply with the requirements
mutatis mutandis, imposed by
Article 181 of the constitution.
Those requirements would clearly
include the laying of the
relevant agreement before
parliament in terms of clause
(1).
And under clause (2) the
agreement was not to come into
operation unless it was approved
by a resolution of parliament
.................”
Said Date – Bah JSC “my
interpretation of
...........clause (5) of Article
181 of the current constitution,
is that international business
or economic transactions are to
be treated, mutatis mutandis, as
the same as loan agreements,
from the point of view of the
requirements contained in
Article 181. This, to my mind,
means that an international
business transaction or
international economic
transaction to which the
government is a party must be
submitted to parliament for
approval even though the nature
of the obligation embodied in
such transaction is not one of
debt”.
The same view was expressed by
Sophia Akuffo JSC with respect
to the scope of Article 181 of
the 1992 constitution in
relation to the mandatory
constitutional requirement of
prior parliamentary approval in
all international business
transactions or international
economic transactions in which
the Government of Ghana is a
party.
17. That is the current
position of judicial authority
in relation to international
business or economic
transactions in which the
government of Ghana is a party
and the agreement giving rise to
the instant suit may not be an
exception. With respect to issue
(iii) set down in the motion for
referral I think the answer can
be found in the position of Wood
JSC (as she then was) when she
said in the FAROE ATLANTIC case
that:
“The proposition established by
In Re an arbitration, Mahmoud
and Ispahani [1921] 2KB 716CA is
that the plea of res judicata
cannot apply to illegal
contracts. The power purchase
agreement is not an illegal
contract, but the underlying
principle in Mahmoud is also
valid for contracts which are
void for constitutionality. We
have a constitutional duty to
interfere with the award. This
gross violation of the Supreme
law of our land, which has
rendered an otherwise lawful
contract unconstitutional cannot
be validated by estoppel
doctrine of res judicata. Indeed
IN RE KWABENA STOOL: KARIKARI
VRS. ABABIO III [2001 – 2002]
SCGLR 515 puts the matter beyond
disputation. In this case this
court unanimously speaking
through Ampiah JSC observed
that
“.............Estoppels of all
kinds are subject to one general
rule; they cannot override a
statutory provision. Thus where
a particular formality is
required by statute no estoppel
will cure the defect”.
18. Then came the latter
decision of the Supreme Court in
the case of REPUBLIC VRS. HIGH
COURT (FAST TRACK DIVISION)
ACCRA EX – PARTE COMMISSION ON
HUMAN RIGHTS AND ADMINISTRATIVE
JUSTICE (RICHARD ANANE
INTERESTED PARTY). The facts of
this case are too notorious to
every student of constitutional
law and I will not reproduce
them. Suffice it to say that it
also involves the interpretation
of provisions of the
constitution establishing and
empowering the Commission on
Human Rights and Administrative
Justice in relation to the scope
and procedure before the
jurisdiction of the Commission
can be said to have been
properly invoked to investigate
allegations of corruption
against a public officer.
Specifically however, the court
was called upon to determine
whether or not by the provisions
of the constitution and the
COMMISSION ON HUMAN RIGHTS AND
ADMINISTRATIVE JUSTICE (Complain
procedure) Regulations 1994 CI
47 Reg. 11 – (3) the Commission
can exercise jurisdiction to
investigate Dr. Anane over
allegations of corruption in the
public domain at the time in the
absence of a formal complain
from an identifiable
complainant.
19. Once again it is
pertinent to state that the
Anane case as is now commonly
referred to was decided in the
exercise of the Supreme Court’s
supervisory jurisdiction though
the principles set out relative
to interpretation are relevant
and applicable to the nature of
the questions forming the basis
of the Plaintiff/Applicant’s
application for an order for
referral in the instant
application.
20. One of the principles
set down by the Supreme Court in
Anane is that “Whenever there
were no disputed facts to be
resolved, for either a
determination of whether or not
a genuine question for
interpretation had arisen or for
a formulation of the issue for
referral, the referral ought to
be made without delay.
Furthermore, the trial court
should not presume that there
was no issue for interpretation:
it would be a safer course of
action for the trial court to
refer the matter to the Supreme
Court rather than assume there
was no real issue for
interpretation or that its view
of the constitutional provision
was more likely to be correct
than that of five or seven
Supreme Court Justices put
together. That certainly cannot
be as it would be preposterous
for a single trial High Court to
assume a position that would
tantamount to equating itself to
the collective wisdom of the
Supreme Court.
21. This is to my mind
however is not a rule of general
application because each case
ought to be considered on the
peculiar facts and circumstances
it presents for determination as
well the legal principles laid
down by binding judicial
precedent. Indeed even in
Anane’s case the Supreme Court
preferred an order of referral
to be made in situations where
there is no existing precedent
on the matter a position which
confirms their earlier decision
in AGYEKUM VRS. BOADI.
22. In that case of
AGYEKUM VRS. BOADI [2000] SCGLR
282, the Supreme Court had laid
down a principle of abiding
value and guidance which by
virtue of the Article 129 (3) of
the 1992 constitution is binding
on this court. In that case
which arose because a circuit
trial judge had referred an
issue for determination to the
Supreme Court to wit.
“(i). Whether or not the
deconfiscation order directed by
the President of the 4th
Republic through the Confiscated
Assets Committee in respect of
the property of the Plaintiff
was in contravention of the
letter and spirit of the 1992
constitution in particular
sections 35(1) and (2) of the
transitional provisions and (ii)
whether or not section 3 of the
Confiscated Assets (Removal of
Doubt) Law 1993 (PNDCL 325) was
in contravention of Section 35
(2) of the Transitional
Provisions”
The supreme Court held that
though a lower court such as
this court was empowered under
Article 130(2) of the 1992
constitution to refer a question
of law to the Supreme Court,
where that question has already
been determined by the court no
reference would arise because
the court intending to refer
that question of law was bound
under Article 129 (3) of the
1992 constitution to follow the
decision of the Supreme Court.
In that case, the issue referred
by the trial circuit Judge had
already been interpreted in the
Commission on Human Rights and
Administrative Justice No. 1
Vrs. Attorney – General [1998 –
99] SCGLR 871.
23. From my exhaustive
reading of the Anane case, the
decision in AGYEKUM VRS. BOADI
has not been departed from, nor
overruled. I am also not aware
of any decision of the Supreme
Court with respect to the
referral of questions and issues
by lower courts pursuant to
Article 130(2) of the 1992
constitution in which the
decision in AGYEKUM VRS. BOADI
has been held not to be good law
or made per incuriam. It
therefore remains binding
judicial precedent which I shall
follow in determining this
application.
24. In the instant,
application both counsel have
referred me to the decision of
the Supreme Court in FAROE
ATLANTIC. It follows that the
issues set down for referral
having already been determined
by the Supreme Court in the
Faroe Atlantic case, the
referral of those issues is no
longer necessary by any lower
court and this court is bound by
the earlier determination in the
FAROE ATLANTIC case.
25. In my view, the
application by the
Plaintiff/Applicant for an order
for referral of the very issues
settled by the Supreme Court is
at variance with the benign
advance heralded by the decision
in AGYEKUM VRS. BOADI and
carried forward by the decision
in the Anane case.
26. The determination of
the issues cannot be available
through the referral procedure
pursuant to Article 130(2) of
the 1992 constitution and it is
for all the reasons I have set
out, that this application must
fail and is accordingly
dismissed.
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
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