|
Constitutional law - Supreme
Court - Invoking the supervisory
jurisdiction of the Court -
Power purchase agreement -
International business
transaction – True and proper
interpretation of Article 181(5)
- Whether or not High Court
failure to refer the
constitutional issues
arising to the Supreme Court is
a breach of article 130 of the
1992
Constitution of Ghana –
Whether or not the arbitration
agreement contained
in the
international business
transaction is subject to
Parliamentary approval - Article
130(2) - 1992 Constitution
HEADNOTES
The core of
the Attorney General’s
application for referral to the
Supreme Court lies the fact
that, the agreement in question
was between the Government of
Ghana and a foreign company, the
agreement in question was
between the Government of Ghana
and a company incorporated in
Ghana but wholly owned by a
foreign company and, as
contended by the Attorney
General, controlled by persons
outside Ghana. Clearly, the
parties were in disagreement as
to whether, within the meaning
of Article 181(5), the agreement
was an international business
transaction, and therefore
should have been first laid
before Parliament. In other
words, the scope of a provision
of the Constitution had come
into contention and this
necessitated further
interpretation In such
circumstances, the best course
of action (indeed the only
lawful course of action), for
the learned Judge, was to refer
the issue to the Supreme Court
in compliance with Article
130(2), to avoid the usurpation
of this Court’s exclusive
interpretative jurisdiction.
HELD
For the foregoing reasons, we
rule that the High Court should
have referred to the Supreme
Court the question raised in the
proceedings before him
concerning Article 181(5).
Having refused to do so, the
learned judge usurped the
jurisdiction of this Court and
breached the Constitution and
accordingly, we grant to the
Applicant herein the first
relief claimed and hereby
declare that the failure of the
High Court (Commercial Division)
to refer to this Court for
interpretation, pursuant to
article 130(2),
Consequently, in order to
expedite the determination of
the constitutional question at
stake, we hereby refer to this
Court the following questions:-Whether
or not the Power Purchase
Agreement dated 27th
July 2007 between the Government
of Ghana and Balkan Energy
(Ghana) Limited constitutes an
international business
transaction within the meaning
of Article 181(5) of the
Constitution.
Whether or not the
arbitration provisions contained
in clause 22.2 of the Power
Purchase Agreement dated 27th
July 2007 between the Government
of Ghana and Balkan Energy
(Ghana) Limited constitutes an
international business
transaction within the meaning
of Article 181(5) of the
Constitution
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
CASES
REFERRED TO IN JUDGMENT
Attorney
General v. Faroe Atlantic Co.
Ltd [2005-2006] SCGLR 271.
Republic v.
Special Tribunal, Ex Parte
Akosah [1980] GLR, 592,
Agyekum v.
Boadi [2000] SCGLR, 282,
The Republic
v. High Court (Fast Track
Division) Accra, Ex Parte
Electoral Commission (Mettle-Nunoo
and others: Interested
Parties)[2005-2006] SCGLR, 514,
The Republic
v. High Court (Fast Track
Division) Accra, Ex Parte
Commission on Human Rights and
Administrative Justice (Richard
Anane: Interested Party),
[2007-2008] SCGLR 213
BOOKS
REFERRED TO IN JUDGMENT
Merriam-Webster Dictionary of
Law (1996)
DELIVERING
THE LEADING JUDGMENT
SOPHIA A. B.
AKUFFO, JSC;
COUNSEL
THE ATTORNEY
– GENERAL IN PERSON, WITH THE
SOLICITOR GENERAL, NAANA DONTOH,
CSA AND GRACE AWOOL SSA FOR THE
APPLICANT.
MR. ACE
ANKOMAH, WITH ESTHER D. AGBESI
FOR THE INTERESTED PARTIES
______________________________________________________________________
R U L I N G
______________________________________________________________________
SOPHIA A. B.
AKUFFO, JSC;
Article 181
of the Constitution provides, in
part, as follows:-
“(1)
Parliament may, by a resolution
supported by the votes of a
majority of all the members of
Parliament, authorise the
Government to enter into an
agreement for the granting of a
loan out of any public fund or
public account.
(2) An
agreement entered into under
clause (1) of this article shall
be laid before Parliament and
shall not come into operation
unless it is approved by a
resolution of Parliament.
(3) No
loan shall be raised by the
Government on behalf of itself
or any other public institution
or authority otherwise than by
or under the authority of an Act
of Parliament.
(4)
....
(5)
This article, shall with the
necessary modifications by
Parliament apply to an
international business or
economic transaction to which
the Government is a party as it
applies to a loan....”
This is an
application
invoking
the supervisory jurisdiction of
the Court for the following
reliefs:-
“i. a
declaration that the failure of
the High
Court (Commercial Division) to
refer the constitutional issues
arising in Suit No. BDC 32/2010
... to the Supreme Court is a
breach of article 130 of the
1992 Constitution of Ghana....”
ii. a
declaration that each of the
power
purchase agreement between
the Government of Ghana and
Balkan Energy (Ghana) Limited
dated 27th July 2007
(‘PPA’) and
the
arbitration agreement contained
therein, being an international
business transaction,
neither is enforceable
Parliamentary approval not
having been obtained.
iii.
any further or other relief....”
Taking into
account the nature of the
application, this Court can, at
this juncture, deal properly
with the first relief only since
the 2nd relief
presupposes the Court’s positive
disposition of the 1st
relief. And since the 2nd
relief raises a more in-depth
consideration of the substantive
claim that came before the High
Court, we may not simply deal
with it as though it were merely
a consequential relief
necessarily flowing from our
disposition on the 1st
relief. In the circumstances of
this matter, we must in the
interest of justice make haste
somewhat slowly.
Article 130
of the Constitution stipulates
that:-
“(1) Subject to the jurisdiction
of the High Court in the
enforcement of the Fundamental
Human Rights and Freedoms as
provided in article 33 of this
Constitution, the Supreme Court
shall have exclusive original
jurisdiction in -
(a) all matters relating to the
enforcement or interpretation of
this Constitution; and
(b) all matters arising as to
whether an enactment was made in
excess of the powers conferred
on Parliament or any other
authority or person by law or
under this Constitution.
(2) Where an issue that relates
to a matter or question referred
to in clause (1) of this article
arises in any proceedings in a
court other than the Supreme
Court, that court shall stay the
proceedings and refer the
question of law involved to the
Supreme Court for determination;
and the court in which the
question arose shall dispose of
the case in accordance with the
decision of the Supreme Court.
The
application is, therefore, of a
very narrow compass, and indeed,
the only issue we need to
determine herein is whether or
not the learned High Court Judge
should have stayed proceedings
as prayed by the Honourable
Attorney General and referred to
this Court for determination the
question of
whether
or not, on a true and proper
interpretation of Article 181(5)
(supra), the power purchase
agreement (and the arbitration
clause therein) in issue in the
matter before it constitutes an
international business
transaction.
In disposing
of the application for stay of
proceedings and referral of the
said question to this Court, the
learned High Court Judge
reviewed various decisions by
this Court concerning the
circumstances under which the
High Court is required to
proceed as prayed by the
Attorney General and concluded
that:-
“In my view,
the application by the
Plaintiff/Applicant for an order
for referral of the very
questions already determined 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’.
According to
the learned High Court Judge,
the constitutional provision the
Attorney General sought to have
referred to the Supreme Court
for interpretation had already
been interpreted by the Court in
Attorney General v. Faroe
Atlantic Co. Ltd [2005-2006]
SCGLR 271. Consequently,
according to his Lordship, on
the authority of cases such as
Republic v. Special Tribunal, Ex
Parte Akosah [1980] GLR, 592,
Agyekum v. Boadi [2000] SCGLR,
282, the Republic v. High
Court (Fast Track Division)
Accra, Ex Parte Electoral
Commission (Mettle-Nunoo and
others: Interested
Parties)[2005-2006] SCGLR, 514,
and the Republic v. High
Court (Fast Track Division)
Accra, Ex Parte Commission on
Human Rights and Administrative
Justice (Richard Anane:
Interested Party), [2007-2008]
SCGLR
213,
there could not be any genuine
controversy concerning the
meaning of Article 181(5) and,
consequently, there was no need
for referring any question
concerning its interpretation to
the Supreme Court. One cannot
fault the learned Judge’s
analysis of the purport of the
above mentioned cases and we
certainly do not desire to
whittle away any benign benefits
derivable from the cases of
Agyekum v. Boadi and Ex Parte
Commission on Human Rights and
Administrative Justice. In our
view, however, his Lordship
completely missed the mark when
he failed to apply the
admonition afforded by the
decision in Ex Parte Electoral
Commission (supra) and
favourably mentioned in Ex Parte
Commission on Human Rights and
Administrative Justice (supra)
that:-
“...the trial
court should not presume there
is no issue of interpretation;
it will be a safer course of
action for the trial court to
refer the matter to the Supreme
Court rather than assume there
is no real issue of
interpretation, or that his or
her view of the constitutional
provision is more likely to be
correct than that of five or
seven Supreme Court Justices put
together.”
At
the core
of the Attorney General’s
application for referral lies
the fact that, whilst in the
abovementioned case of Attorney
General v. Faroe Atlantic
Company Limited, the agreement
in question was between the
Government of Ghana and a
foreign company, in the matter
before the High Court in Suit
No. BDC 32/2010, the agreement
in question was between the
Government of Ghana and a
company incorporated in Ghana
but wholly owned by a foreign
company and, as contended by the
Attorney General, controlled by
persons outside Ghana. Clearly,
the parties were in disagreement
as to whether, within the
meaning of Article 181(5), the
agreement was an international
business transaction, and
therefore should have been first
laid before Parliament.
In other
words, the scope of a provision
of the Constitution had come
into contention and this
necessitated further
interpretation of article
181(5), to settle once and for
all the question raised.
In such
circumstances, the best course
of action (indeed the only
lawful course of action), for
the learned Judge, was to refer
the issue to the Supreme Court
in compliance with Article
130(2), to avoid the usurpation
of this Court’s exclusive
interpretative jurisdiction.
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. Ltd
(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 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 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.
For the foregoing reasons, we
rule that the High Court should
have referred to the Supreme
Court the question raised in the
proceedings before him
concerning Article 181(5).
Having refused to do so, the
learned judge usurped the
jurisdiction of this Court and
breached the Constitution and
accordingly, we grant to the
Applicant herein the first
relief claimed and hereby
declare that the failure of the
High Court (Commercial Division)
to refer to this Court for
interpretation, pursuant to
article 130(2),
the question of whether or not
the power purchase agreement
dated 27th July 2007,
between the Government of Ghana
and the 1st Interested Party, as
well as the arbitration
agreement contained therein,
constitute ‘an international
business transaction’ within the
meaning of Article 181(5) of the
Constitution, amounts to a
breach of the Constitution.
Now, as was made patently clear
in the abovementioned case of Ex
Parte Electoral Commission, the
remedies available to the
Supreme Court, when exercising
its supervisory jurisdiction
under Article 132, are not
limited to the issuing of the
conventional writs of
certiorari, mandamus,
prohibition, etc. We also have
the power to issue orders and
directions as shall be necessary
to prevent illegalities, failure
of justice and needless delays
in the administration of
justice, ‘for the purpose of
enforcing or securing the
enforcement’ of our supervisory
power. Additionally, under
Article 129(4):-
“For the purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgement or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court by
this Constitution or any other
law, the Supreme Court shall
have all the powers, authority
and Jurisdiction vested in any
court established by this
Constitution or any other law.”
Consequently, in order to
expedite the determination of
the constitutional question at
stake, we hereby refer to this
Court the following questions:-
1.
Whether or not the Power
Purchase Agreement dated 27th
July 2007 between the Government
of Ghana and Balkan Energy
(Ghana) Limited constitutes an
international business
transaction within the meaning
of Article 181(5) of the
Constitution.
2.
Whether or not the arbitration
provisions contained in clause
22.2 of the Power Purchase
Agreement dated 27th
July 2007 between the Government
of Ghana and Balkan Energy
(Ghana) Limited constitutes an
international business
transaction within the meaning
of Article 181(5) of the
Constitution.
[SGD] S.A B. AKUFFO
(MS.)
JUSTICE OF THE SUPREME COURT
[SGD]
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
[SGD] S. O. A.
ADINYIRA
(MRS.)
JUSTICE OF THE SUPREME COURT
[SGD] N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD]
V. AKOTO-BAMFO
(MRS.)
JUSTICE OF THE SUPREME COURT
COUNSEL
THE ATTORNEY
– GENERAL IN PERSON, WITH THE
SOLICITOR GENERAL, NAANA
DONTOH, CSA
AND GRACE AWOOL SSA FOR THE
APPLICANT.
MR. ACE
ANKOMAH, WITH ESTHER D. AGBESI
FOR THE INTERESTED PARTIES. |
