June 21, 2013
SUPREME COURT
CORAM
AI Generated Summary
In this unanimous Supreme Court judgment authored by Dr. Date-Bah JSC, with concurrences by Dotse JSC and Adinyira JSC, Martin Amidu challenged two Government of Ghana contracts with Isofoton S.A. as unconstitutional because they were not laid before and approved by Parliament under Article 181(5) of the 1992 Constitution. The Court distinguished Parliamentary approval of a project loan agreement from specific implementation contracts financed by that loan and held that Parliament must separately scrutinize and approve such international business or economic transactions. It declared the 2001 solar electrification and 2005 solar irrigation agreements void, invalidated High Court consent judgments and garnishee orders founded on those agreements, and ordered Isofoton to refund US$325,472 plus interest. Reaffirming citizen capacity under Article 2, the Court emphasized its exclusive jurisdiction over constitutional interpretation and struck out the 3rd defendant, who had acted solely as Isofoton’s lawful attorney, as improperly joined. Dotse JSC stressed trial courts must refer constitutional questions to the Supreme Court.
JUDGMENT
DR. DATE-BAH JSC:
This is the unanimous judgment of the Court.Our esteemed brother Dotse JSC will, however, add some concurring remarks to it. Also, there is a short concurrence from our sister Justice Adinyira, who is unavoidably unable to be with us today, but has consented to our delivering the judgment in her absence.
The Facts
On the 24th day of July 2012, the plaintiff, a former Attorney-General of the Republic of Ghana, issued a writ against the defendants in this case claiming the following reliefs:
“i) A declaration that:
a. On a true and proper interpretation of Article 181 (3) (4) and section 7 of the Loans Act, (Act 335) the laying before and approval on 1st August 2005 of the terms and conditions of the Second Financial Protocol between the Republic of Ghana and the Kingdom of Spain for an amount of sixty-five million Euro (€65,000,000) for the implementation of various development projects and programmes in Ghana did not nullify the effect of Article 181 (5) of the 1992 Constitution that mandates further laying before and approval of any specific international business or economic transaction to which the Government is a party even if payment had to be made from the said loan approved by Parliament.
b. The Agreement between Isofoton S. A of Montalban 9th 28014, Madrid Spain, a foreign registered company and the Ministry of Food and Agriculture of the Government of Ghana dated 22nd September 2005 for the execution of a project designated as “Solar PV Powered Water Pumping and Irrigation Systems in Remote Rural Areas of Ghana” is an international business or economic transaction within the meaning of Article 181(5) of the 1992 Constitution and never became operative because it was not laid before and approved by Parliament and is accordingly null, void and without effect whatsoever.
c. The Agreement between Isofoton S. A. of Montalban 9, 28014, Madrid Spain, a foreign registered company and the Ministry of Energy of the Government of Ghana in 2001 for the execution of the “Solar Electrification Project in Ghana Phase II” is an international business or economic transaction within the meaning of Article 181 (5) of the 1992 Constitution and never became operative because it was not laid before and approved by Parliament and is accordingly null, void and without effect whatsoever.
d. The conduct of the 2nd Defendant in suing for breaches of the said Agreements through his lawful Attorney the 3rd Defendant when he knew that the Ag