2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana dismissed the plaintiffs case, ruling that the Ghana Ports and Harbours Authority (second defendant) is not considered 'Government' under Article 181(5) of the 1992 Constitution. Consequently, the agreements it entered into do not require parliamentary approval. The court justified this conclusion by noting the operational and legal autonomy of the second defendant. The ruling elaborated that while statutory corporations are generally excluded from the ambit of Article 181(5), the doctrine of alter ego could serve as an exception in future cases if it was shown that the government used a statutory corporation to evade parliamentary scrutiny and approval. The dismissal was based on the interpretation that ordinary contracts of statutory corporations are not within the scope of Article 181(5).
DR DATE-BAH JSC:
This Court on 16th January 2013 delivered a ruling in which it dismissed the preliminary objection of the defendants (bar one) to the jurisdiction of this Court in this suit. The material facts of this case as stated in that ruling remain apposite and are set out again below.
The plaintiff issued a Writ on 23rd August 2011, invoking the original jurisdiction of this Court and claiming the following reliefs:
“A declaration that on a true and proper interpretation of article 181 of the Constitution the expression “government” in article 181 includes a state entity that possesses the characteristics of Second Defendant;
A declaration that on a true and proper interpretation of article 181 of the Constitution, the requirements in article 181 equally apply to a state entity such as Second Defendant, that enters into an international economic transaction;
A declaration that the Shareholder Agreement dated the 17th day of August 2004 and entered into between Second Defendant, and Third and Fourth Defendants, is an international business or economic transaction, and that the failure and or neglect to submit it to Parliament for approval renders it null, void and unenforceable pursuant to 181 of the 1992 Constitution;
A declaration that the Concession Agreement dated the 17th day of August 2004, and entered into between Second Defendant and Third and Fourth Defendants is an international business or economic transaction, and that the failure and or neglect to submit it to Parliament for approval renders it null, void and unenforceable pursuant to 181 of the 1992 Constitution;
Any other consequential order (s) as this Honourable Court may deem fit.”
The defendants, with the exception of the first defendant, raised a preliminary objection to the jurisdiction of this Court in this matter. This Court therefore had to make the ruling earlier referred to.
The plaintiff is a citizen and taxpayer of Ghana, resident in Ghana, who wishes to ensure compliance with Article 181(5) of the 1992 Constitution. That provision states that: “(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.”
Article 181 of the 1992 Constitution states, in full, that:
“(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 gra