May 31, 2022
SUPREME COURT
GHANA
CORAM
AI Generated Summary
An NGO challenged Ghana’s Plant Variety Protection Act, 2020 (Act 1050) in the Supreme Court under Articles 1(2), 2(1) and 130(1), arguing that Section 61 and the definition of “Convention” in Section 63 illegally domesticate the International Convention for the Protection of New Varieties of Plants (UPOV 1961) without prior presidential execution, in breach of Article 75. The Attorney-General countered that Act 1050 implements Ghana’s intellectual property commitments, including under the TRIPS Agreement, and that joining UPOV requires first enacting a domestic regime; Section 61 merely expresses intent to align, not ratify. The Court framed two issues: whether original jurisdiction was properly invoked and whether Act 1050 contravenes Article 75(2). Reiterating limits on its interpretative jurisdiction, the Court found no ambiguity in Article 75, held that Section 61 does not ratify or domesticate UPOV, emphasized Parliament’s expansive legislative authority, and dismissed the action.
AMEGATCHER JSC:-
INTRODUCTION
The plaintiff, a Non-Governmental Organization incorporated in Ghana, invokes the original jurisdiction of this Court pursuant to articles 1(2), 2(1) and 130(1) of the Constitution, 1992 about the passage by the Parliament of Ghana of the Plant Variety Protection Act, 2020 (Act 1050), for the following reliefs:
1.A declaration that Section 61 of the Plant Variety Protection Act, 2020 (Act 1050) which enjoins the Attorney General and Minister for Justice to ensure that the implementation of the Act does not affect the fulfilment of the obligations of Ghana pertaining to the protection of plant breeder rights under the Convention to which Ghana is a party and also Section 63 of Act 1050 which defines "Convention" to mean the International Convention for the Protection of New Varieties of Plants of 1961 is inconsistent with Articles 1 (2), 11 and 75 of the 1992 Constitution.
2.A declaration that Section 22 of Act 1050 which provides that a plant breeder right is subject to any measure taken by the Republic to regulate, within Ghana, the protection, certification and marketing of material of a variety or the importation or exportation of the material is inconsistent with Articles 1 (2) and 11 of the 1992 constitution.
3.A declaration that Section 8 of Act 1050 on Eligibility for a Plant Breeder Right and Section 9 of Act 1050 on Application for a Plant Breeder Right are inconsistent with Articles I (2), 17 (1), (2) and (3) of the 1992 Constitution.
4.A declaration that Sections 8, 9, 19 and 42 of Act 1050 are inconsistent with Articles 26 (1), 36 (1), 36 (2)(6), 36 (3), 37 (2) (a) and (b), 37 (3) and 40 of the 1992 Constitution.
5.On a true and proper interpretation of Article 41 of the 1992Constitution, the provision in Section 9 (5) of Act 1050 to treat a foreign citizen or resident in the territory of a party to a treaty to which the Republic is a party in Section 9 (2)(b) of Act 1050 and to treat a legal entity that has a registered office within the territory of a party to treaty to which the Republic is a party in Section 9 (2)(c) of Act 1050 as citizens in respect of the operation of Act 1050 is inconsistent with and contravenes Article 41 of the 1992 Constitution and Sections 18(2), 182, 345 and 347 of the Companies Act, 2019 (Act 992).
6.A declaration that Section 60 of Act 1050 on Offences is inconsistent with Articles 15 (2)(a) and (b) and 296 (b) of the 1992 Constitution.
7.An order setting aside Act 1050 as a