2013
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In Ghana, the Supreme Court addressed whether agreements between the Government and Waterville required parliamentary approval under Article 181(5) of the 1992 Constitution and found them void without such approval. Payments made by the Government to Waterville were deemed unconstitutional and any restitution claims based on the agreements were invalid. The Supreme Court highlighted its jurisdiction to interpret constitutional provisions and determined that the issues regarding the agreements fall within this remit, while other contractual matters are for the High Court.
DR DATE-BAH JSC:
The facts
To the joy of the many lovers of soccer in Ghana, Ghana won,in July 2004,the right to host the 2008 African Cup of Nations football tournament, popularly known as CAN 2008. This case is about one of the consequences of Ghana's successful bid to host CAN 2008. As a result of winning the right to host CAN 2008, the Government of Ghana became obliged to rehabilitate football stadia and other sporting facilities in Ghana. In order to fulfill this obligation, it set in motion in January 2005 a procurement process for the award of appropriate contracts in accordance with the Public Procurement Act, 2003 (Act 663).
Vamed Engineering Gmbh & CO KG (referred to subsequently as 'Vamed') was one of the companies which submitted a tender for the award of a contract to rehabilitate the stadia specified by the Government of Ghana. Vamed became one of two companies which were shortlisted by the Government's evaluation committee. Meanwhile, by a letter dated 15t July 2005, Vamed purported to assign all its rights and obligations in the CAN 2008 stadia tender and another specified project to the second defendant. The second defendant, by an undated letter from Andrea Orlandi, a director of the company, to Vamed accepted this purported assignment.
The relevant Entity Tender Committee recommended Vamed/Waterville to the Central Tender Review Board for the award of the contract because its tender
was in their view the most competitive. The Central Tender Review Board on StnAugust 2005 gave "concurrent approval for the award of the contract to Messrs VAMED Engineering." However, by a letter dated 22nd August 2005 addressed to the Managing-Director of Vamed, the Minister for Education,Youth and Sports purported to terminate the procurement process "due to the high commitments implied in the submissions, the inconclusive and the non-assuring nature of the financial submissions". The second defendant made several protests to Government in respect of this purported abrogation. It entered into negotiation with Government regarding the purported abrogation which resulted in a Memorandum of Understanding between them on 30th November 2005. The MOU stated that the Government would award the Ohene Djan and El Wak stadia project on a turnkey basis to the second defendant.
On 26th April, 2006 the Government of Ghana signed two separate but similar agreements with the second defendant for the rehabilitation of the Ohene Djan and El Wak stadia in Accra and t