June 19, 2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Asiedu JSC, dismissed a constitutional challenge by a Ghanaian Member of Parliament for Bawku Central attacking the establishment and financing of Ghana Amalgamated Trust Plc (GAT). In response to the Bank of Ghana’s 2017 increase of minimum bank capital, Government incorporated GAT as a public limited liability company and special purpose vehicle to support distressed indigenous banks including ADB, OmniBsic, Prudential, UMB, and NIB. Shares in GAT were held in trust by the National Trust Holding Company (NTHC) for the Ministry of Finance. The plaintiff argued GAT could only be established by Act of Parliament under Articles 190 and 192 and contended that Government’s GH₵800 million subscription and the PCOA and sovereign guarantee were “loans” requiring Article 181 approval. The Court harmonized Articles 190, 192, and 295(1), holding GAT as a valid public corporation established with public funds under the Companies Act to operate as a commercial venture. It found the GH₵800 million equity subscription was expenditure approved under Article 179, and the PCOA a guarantee qualifying as an international business transaction approved under Article 181(5). All claims were dismissed.
ASIEDU JSC:
[1]. Introduction/Reliefs: My lords, by his writ, the plaintiff herein, suing in his capacity as a Ghanaian and a Member of Parliament for Bawku Central, invokes the original jurisdiction of this court for: i. A declaration that upon a true and proper construction of the provisions of Articles 190(1)(b), (4) and 192 of the 1992 Constitution of the Republic of Ghana, any and every entity established for commercial purposes or as a commercial venture or in respect of which the Government of the Republic of Ghana is the sole beneficiary of its commercial fortunes, ought to be a public corporation within the meaning of articles 190(1)(b), (4), 192, 297 and 298 of the 1992 Constitution of the Republic of Ghana and must in accordance with the provisions of article 192 of the Constitution, be established by an Act of the Parliament of the Republic of Ghana.
A declaration that the incorporation of the Ghana Amalgamated Trust PLC [third Defendant] in respect of which the Government of the Republic of Ghana is the sole beneficiary of its shares, held in trust for and on its behalf by the National Trust Holding Company (NTHC) [fourth defendant] is inconsistent with, and in contravention of the provisions of articles 190(1)(b), (4), 192, 297 and 298 of the 1992 Constitution of the Republic of Ghana and is accordingly, null, void and of no effect.
A declaration that the GH₵800, 000, 000. 00 made available to third Defendant, as its initial capitalization to enable third Defendant invest in certain banks in Ghana could only have been advanced to third Defendant [not being a statutory corporation established under and by virtue of article 192 of the 1992 Constitution], as a loan from public funds pursuant to the provisions of Article 181 clause (1) of the Constitution.
A further declaration that upon a true and proper construction of the provisions of article 181 clauses (1) and (2) of the 1992 Constitution of the Republic of Ghana, every loan agreement Government intends to enter into must be preceded, as a mandatory first step, by an authorization given by the Parliament of the Republic of Ghana to Government, to enable Government enter into such agreement.
v. A declaration also that upon a true and proper construction of the provisions of article 181 clauses (1) and (2) of the 1992 Constitution of the Republic of Ghana, any authorization given by the Parliament of the Republic of Ghana to the Government to enter into an agreement for the grant