2013
SUPREME COURT
CORAM
AI Generated Summary
The case involves a dispute over whether statutory corporations are included within the definition of 'government' under Article 181 of the 1992 Constitution of Ghana, which mandates parliamentary approval for international business transactions involving the government. The plaintiff argued that agreements entered into by the second defendant, a statutory corporation, without parliamentary approval were null and void. The defendants raised a preliminary objection, claiming that the term 'government' as defined in the constitution was unambiguous and did not include statutory corporations. The court, however, held that the term was ambiguous and raised a genuine issue of interpretation, thus it had jurisdiction to hear the case.
DR DATE-BAH JSC:
The plaintiff issued a Writ on 23rd August 2011, invoking the original jurisdiction of this Court and claiming the following reliefs:
1. “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;
2.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;
3.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;
4.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;
5.Any other consequential order (s) as this Honourable Court may deem fit.”
The defendants, with the exception of the first defendant, have raised a preliminary objection to the jurisdiction of this Court in this matter. This Ruling is therefore on whether their preliminary objection should be sustained.
The material facts relied on by the Plaintiff in this case are as follows. 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 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 no