April 10, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Acting under article 132, the Attorney-General sought certiorari and prohibition from the Supreme Court to quash a High Court garnishee order nisi and a subsequent ruling in garnishee proceedings initiated by Zenith Bank Ghana Limited against funds in Bank of Ghana accounts. The background included Zenith Bank’s USD 44.16 million judgment against Balkan Energy Ghana Limited and an arbitral award of about USD 13.3 million in Balkan’s favor against Ghana, which a U.S. court confirmed and assigned to Balkan Energy UK, prompting Ghana to pay USD 13.68 million. The Supreme Court, per Dordzie JSC, held that under Order 47, disputes about whether any debt was due or accrued and the validity of assignments are to be resolved at the garnishee “further consideration” stage, and that the High Court acted within jurisdiction in issuing the order nisi. Certiorari was refused because adequate remedies existed through the garnishee hearing and appeal. Gbadegbe JSC concurred, emphasizing procedural constraints and presumption of regularity. Baffoe-Bonnie JSC, joined by Yeboah JSC, dissented, finding lack of jurisdiction and ordering quashing.
DORDZIE (MRS.), JSC:-
FACTS
In a suit numbered BFS/217/13, between Zenith Bank Ghana Limited (the interested party herein) and Balkan Energy Ghana Limited and Reality Advisors Incorporated in the High Court, Zenith Bank, on the 12th of March 2014 obtained judgment in the sum of USD44, 155,258.39 against Balkan Energy Ghana Ltd.
Balkan Energy on the other hand was given an arbitral award of about USD 13.3 million against the Republic of Ghana. This came about as a result of breach of a power purchase agreement between Balkan Energy Ltd and the Republic of Ghana. In accordance with an arbitration clause in the said agreement, Balkan Energy Ghana Ltd commenced arbitration against the Republic of Ghana at the Permanent Court of Arbitration in The Hague, Netherland. On the 1st of April 2014 the arbitration awarded a total of about USD13.3million in favour of Balkan Energy Ghana Ltd.
Zenith Bank in enforcing the judgment against Balkan Energy Ghana Ltd. obtained garnishee order absolute against the Attorney General for the arbitral award to be assigned to it (Zenith Bank). The Garnishee order absolute was granted on the 13th of October 2017. Consequently by a letter dated 16th February 2018 the Attorney - General instructed the Minister of Finance to pay Zenith Bank.
In the meantime Balkan Energy Ghana Ltd. petitioned the United States District Court for the District of Columbia to confirm, recognize and enforce the arbitral award. On the 22nd of March 2018 the District Court for the District of Columbia confirmed the arbitral award and assigned same to Balkan Energy UK.
In view of the above development the Attorney General on the 19th of July 2018 wrote to the Minister of Finance withdrawing its earlier instruction dated 19th February 2018 thereby stopping payment to Zenith Bank; payment to Zenith bank would mean paying the debt twice. The solicitors of the interested party were notified of this development per a letter dated 31st July 2018.
Following the judgment of the District Court for the District of Columbia, Balkan Energy UK took steps to enforce the arbitral award and attached assets of the Government of Ghana in France. The Government of Ghana promptly payed Balkan UK a total of USD 13,678,263.30 being the settlement of the arbitral award. This payment was done on the 2nd of October 2018.
Zenith Bank the interested party herein instituted another execution process and commenced garnishee proceedings in the High Court consequent to which it obta