MAHAMA AYARIGA VRS THE ATTORNEY-GENERAL, PARLIAMENT OF THE REPUBLIC OF GHANA, GHANA AMALGAMATED TRUST PLC. & NATIONAL TRUST HOLDING COMPANY. (NTHC)

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- A.D. 2024

CORAM: SACKEY TORKORNOO (MRS.) CJ (PRESIDING)

BAFFOE-BONNIE JSC

LOVELACE-JOHNSON (MS.) JSC

PROF. MENSA-BONSU (MRS.) JSC

KULENDI JSC ASIEDU JSC

GAEWU JSC

WRIT NO.

J1/20/2022

19TH JUNE, 2024

MAHAMA AYARIGA …………… PLAINTIFF

VRS

1. THE ATTORNEY-GENERAL

2. PARLIAMENT OF THE REPUBLIC OF GHANA.

3. GHANA AMALGAMATED TRUST PLC. DEFENDANTS

4. NATIONAL TRUST HOLDING COMPANY. (NTHC)

JUDGMENT

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.

 

ii. 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.

 

iii. 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.

iv. 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 granting of a loan must be followed by a resolution of Parliament approving the loan agreement itself in order for such loan agreement to come into operation.

 

vi. A declaration that the omission by the Minister for Finance to lay before Parliament the agreement resulting from the authorization given by Parliament for the sum of GH₵800,000,000.00 to be made available to third Defendant as its initial capitalization to enable third Defendant invest in certain banks in Ghana, is inconsistent with, and in contravention of the provisions of article 181 clauses (1) and (2) of the Constitution which mandatorily requires the Minister to lay before Parliament such an agreement as a condition sine qua non for it coming into operation.

 

vii. A declaration that the omission by the Minister for Finance to seek authorization from the Parliament of the Republic of Ghana before entering into the agreement by which the Government of Ghana enabled third Defendant ‘Support Selected Indigenous Ghana Banks’ is inconsistent with, and in contravention of the provisions of article 181 clauses (1) and (2) of the Constitution which mandatorily requires the Minister to seek prior authorization from Parliament as a condition sine qua non to entering such an agreement.

 

viii. A further declaration that the Put-Call Option Agreement [PCOA] and the sovereign Guarantee third Defendant is relying on from the Government of the Republic of Ghana to seek approval for, and issue the IPO is unlawful as it is riding on the unconstitutional advancement of a loan to it out of public funds by Government without parliamentary approval in breach of article 181 of the 1992 Constitution.

ix. An order injuncting the implementation of the Put-Call Option Agreement [PCOA] and the Sovereign Guarantee third Defendant is relying on from the Government of the Republic of Ghana to seek approval for, and issue the IPO.

ix.  And or any further order(s) as to this Honourable Court may deem fit.

 

 

[2.0]. The Original Jurisdiction of the Court:

 

Before embarking upon a discussion of the merits of this case, there is the need to establish whether or not the original jurisdiction of the court has been properly invoked by the plaintiff herein. This can be done by contrasting the reliefs sought by the plaintiff with the constitutional requirement necessary to invoke the court’s original jurisdiction. A summary of the plaintiff’s case is that the registration of the 3rd defendant by the Government under the Companies Act, 2019, Act 992, is unconstitutional as it violates article 192 of the Constitution by which public corporations can be established only by an Act of Parliament. The plaintiff also alleges that, by virtue of its registration, the 3rd defendant is a private entity and that being so, it is unconstitutional for the 1st and 2nd defendants to lend public funds to it as stipulated by article 181(3) of the 1992 Constitution. It is also the case of the plaintiff that, the sum of GH₵800 million injected into the 3rd defendant by way of subscription to Redeemable Preference shares in the 3rd defendant by the Government and also the agreement by the Government to guarantee the sum of GH₵2.2 billion for the benefit of the 3rd defendant were done by the Government in violation of article 181 of the Constitution which required the Government to, first, obtain Parliamentary approval.

Article 2(1)(b) of the Constitution states in emphatic terms that:

“Enforcement of the Constitution

(1) A person who alleges that

 

(b) any act or omission of any person, is inconsistent with, or is in contravention of a provision of this Constitution, may bring an action in the Supreme Court for a declaration to that effect.

Further, article 130(1)(a) provides in equal measure that:

“130. Original jurisdiction of the Supreme Court

(1) Subject to the jurisdiction of the High Court in the enforcement of the Fundamental Human Rights and Freedoms as provided in article 33 of this Constitution, the Supreme Court shall have exclusive original jurisdiction in

(a) all matters relating to the enforcement or interpretation of this Constitution”

 

Thus, whenever a genuine allegation is made by a person that an act or omission of any person, including the Executive and the Legislature, is violative of any provision of the Constitution and the plaintiff furnishes details or particulars of the alleged violation in his writ and statement of case which accords with the provisions of the rules of court and also shows on the face of it a prima facie case for investigation, the jurisdiction of this court can be properly said to have been invoked. In the instant matter before us, we are satisfied that the declaratory reliefs indorsed by the plaintiff portends genuine issues of interpretation and enforcement of the Constitution; hence, the plaintiff has rightly invoked this court’s jurisdiction. See Kan II & Others vs. Attorney-General & Others [2015-2016] 1 SCGLR 691.

[2.1]. As required by rule 46(1) of the Supreme Court Rules, 1996, CI. 16, the plaintiff’s writ was accompanied by a statement of case which set out the facts and legal arguments based on which the writ was issued. The defendants, with the exception of the 5th defendant whose name was struck out by the court as not being a proper party to the suit, have also filed a statement of their respective cases for the consideration of the court. The 4th defendant failed to file a statement of case.

[2.2]. Facts:

 

By a notice to banks in particular, and the public in general, dated the 11th September 2017, the Bank of Ghana revised, upward, the minimum paid up capital for banks to GH₵400,000,000.00 and directed all banks, existing and new entrants, to comply with the directives, latest by 31st December 2018. Several banks could not meet the new paid up capital requirement and therefore approached the Government for assistance. To address the concerns of these banks which included the Agricultural Development Bank; OmniBsic Bank; Prudential Bank Limited; Universal Merchant Bank and National Investment Bank, the Government established the 3rd defendant, a limited liability company, as a special purpose vehicle with the aim of raising the needed finance from the capital market to support the distressed banks. The plaintiff says that the establishment of the 3rd defendant violates article 190(1)(b) and 190(4) of the Constitution, 1992. The 3rd defendant disagrees with this contention of the Plaintiff.

According to the plaintiff, the Government of Ghana held no shares directly in the 3rd defendant. However, the 4th defendant, a private limited liability company, had shares in the 3rd defendant, registered in its name. These shares were held in trust on behalf of the Ministry of Finance by virtue of a deed of trust executed between the 4th defendant and the Ministry of Finance. The 3rd defendant says that the Government of Ghana acquired Redeemable Preference Shares to the tune of GH₵800 million in the Ghana Amalgamated Trust Plc, the 3rd defendant, and the proceeds, invested in some of the banks which needed assistance. The plaintiff describes the GH₵800 million as an initial bridge capitalization provided by the Government of Ghana for which Parliamentary approval was sought by the Government through the 2020 budget statement. The plaintiff says that by article 179(1) and (2) of the Constitution, a budget is merely for the information of members of Parliament and for that reason, the approval granted by Parliament is of no effect because a budget was not the proper forum to request for approval. At any rate, the plaintiff says that the Agreement for the GH₵800 million and a Put Call Option Agreement by which the Government intended that the 3rd defendant will raise an amount of GH₵3 billion to invest in the banks, placed before Parliament on the 2nd December 2019, received no Parliamentary approval. Plaintiff says, therefore, that the initial capitalization of the 3rd defendant in the sum of GH₵800 million was illegitimate and so was the Put Call Option Agreement. The 3rd defendant says that Parliamentary approval was obtained for the Agreements in respect of the initial capitalization as well as the Put Call Option Agreement.

 

 

[3.0]. Arguments of the Plaintiff:

 

[3.1]. It has been submitted on behalf of the plaintiff that, the establishment of the 3rd defendant was unconstitutional. According to the plaintiff, “Government cannot register a company under the Companies Act, 2019, Act 992 and engage in a commercial venture as this violates article 192 of the Constitution. An Act of Parliament must establish a corporation for the purposes of the State engaging in a commercial venture. It was argued that the “constitution makes it clear that for the purposes of providing public services or engaging in commercial ventures, the State must establish ‘public corporations’ by an Act of Parliament. Counsel cited the case of Yeboah vs. Electricity Company of Ghana and Others (J1/7/2016) (2016 GHASC 42) 28 July 2016 and article 190(1)(b) and (4) and also article 192 in support.

[3.2]. It was also argued on behalf of the plaintiff that “there was never a valid approval of the request made by the Minister of Finance in paragraph 220 of the 2020 Budget Statement” and that by article 179(1)(2)(b) of the Constitution, a budget is just for the information of members of Parliament and is ‘not a document for approval of a lending arrangement from any public funds to a private commercial entity registered under the Companies Act’. The budget statement, according to the plaintiff, ‘is not an avenue for approval of what is essentially a loan facility’ and therefore ‘whatever took place in relation to the Budget Statement is of no effect’.

[3.3]. Plaintiff also says that the Agreement presented to Parliament on Monday, 2nd December 2019, was also never approved. These Agreements include the Agreement by the Government of Ghana to support the indigenous banks by way of the GH₵800 million initial capitalization of the 3rd Defendant by which the Government acquired Redeemable Preference Shares in the 3rd defendant, and also the Put Call Option Agreement to enable the 3rd defendant raise GH₵3 billion from the capital market to support the banks.

[3.4]. The plaintiff contends that the initial capitalization of GH₵800 million constitutes a loan out of public funds and that the requirements of article 181(1) and (2) of the Constitution for the approval of such loans were not followed. Plaintiff says the budget statement is not the forum to seek authorization to grant loans from public funds and that ‘by article 181(1) and (2), there has to be a vote approving the request to issue the loan from public account and then a vote on the terms of the loan agreement’.

[3.5]. The plaintiff also contends that ‘article 181(3) of the Constitution does not contemplate raising a loan for non-state or private entities. The plaintiff submits that the Put Call Option Agreement is a loan within the definition of article 181(6) of the Constitution and that article 181(1) and (2) ought to have been followed and therefore the ‘Agreement for the issuance of a guarantee under the Put Call Option Agreement did not come into operation for which reason defendants cannot purport to act on it.’

 

[4.0]. Arguments of the 3rd Defendant:

 

For the 3rd defendant, it was submitted that the setting up or the establishment of the 3rd defendant was done in accordance with the provisions of the 1992 Constitution and that the 3rd defendant is a public limited liability company duly incorporated under the Companies Act, 2019, Act 992. Counsel cited article 295(1) of the Constitution in support and submitted further that the definition given under articles 190(4) and 192 in relation to the expression ‘public corporation’ does not apply to the 3rd defendant.

[4.1]. The 3rd defendant also argues that the GH₵800 million committed to it was subscription by the Government to the shares of the 3rd defendant and not a loan granted it by the Government and that, that being the case, it does not come under the requirement for the grant of a loan spelt out under article 181 of the 1992 Constitution. The 3rd defendant submits that being a subscription as against a loan, it constitutes part of Government expenditure which requires Parliamentary approval under article 179 of the Constitution and sections 21 and 22 of the Public Financial Management Act, 2016, Act 921, as opposed to article 181 of the Constitution, 1992. According to the 3rd defendant, the subscription received approval both from cabinet and Parliament.

[4.2]. It was also submitted on behalf of the 3rd defendant that the Put Call Option Agreement was not a loan within the meaning of article 181(6), but had an element of international business for which reason approval was obtained in accordance with the dictates of the Constitution, 1992.

[4.3]. It was finally submitted that the 3rd defendant is not a private entity but a public corporation set up as a commercial venture and for that reason, the consideration whether Government can lend to a private entity does not arise for determination.

 

 

[5.0]. Arguments of the 1st and 2nd Defendants:

 

The 1st and the 2nd defendants virtually agree with the arguments put forth on behalf of the 3rd defendant with regard to the propriety of the establishment of the 3rd defendant. It was submitted on behalf of the 1st and 2nd defendants that if the position taken by the plaintiff is adopted, the end result will be that the 3rd defendant and all other state-owned enterprises set up under the Companies Act with public funds for commercial purposes, would be unconstitutional.

[5.1]. It was further submitted on behalf of the 1st and the 2nd defendants that the approval sought by the Minister of Finance which was granted by Parliament for the subscription and the Put Call Option Agreement satisfied the requirements of the 1992 Constitution, including the requirements of article 181(1).

 

 

[6.0]. Memorandum of Issues:

 

Rule 50 of the Supreme Court Rules, 1996, CI. 16 provides that:

 

50. Memorandum of agreed issues

 

(1) The parties may agree to file, or shall, if so ordered by the Court, file a memorandum specifying the issues agreed by them to be tried at the hearing of the action.

(2)  The memorandum of agreed issues shall be signed by the parties and may, with the leave of the Court granted on the terms determined by the Court, be amended on the application of any of the parties.

(3) Where the parties cannot agree on the issues each party may file that party’s own memorandum of issues.

Following the filing of their statements of case and as required by rule 50 of CI.16 which is quoted above, the plaintiff and the 3rd defendant filed a memorandum of agreed issues in respect of the following for trial by the court:

i. Whether or not 3rd defendant was validly incorporated by the Government of Ghana as a public corporation set up as a commercial venture in the manner prescribed in article 295(1) of the Constitution and the Companies Act, 2019, Act 992.

ii. Whether or not the Government of Ghana can engage in a commercial venture by taking up shares in an entity registered under the Companies Act, 2019, Act 992 rather than a statutory corporation established by an Act of Parliament.

 

iii. Whether or not the Government of Ghana’s subscription of 3rd defendant’s shares constitutes a loan under article 181 of the Constitution.

 

iv. Whether or not the Government of Ghana is required under article 181 of the Constitution to seek approval from 2nd defendant for its subscription of 3rd defendant’s shares.

 

v. Whether or not the Minister for Finance’s inclusion, of a request for approval of the sum of GH₵800,000,000.00 in the 2020 budget statement as equity capitalization for 3rd defendant for its investment in certain banks in Ghana, is sanctioned by the provisions of article 179 of the 1992 Constitution and the Public Financial Management Act, 2016, Act 921.

 

vi. Whether or not the Government of Ghana’s subscription of shares in 3rd defendant was in accordance with the requirement of the Constitution and Act 921.

vii. Whether or not the Put Call and Option Agreement (PCOA) in favour of the 3rd defendant is a loan within the meaning of article 181 of the Constitution; and,

 

viii. Whether or not the PCOA was validly approved by 2nd defendant in accordance with article 181 of the Constitution.

The 1st and the 2nd defendants did not sign the memorandum of issues agreed by the plaintiff and the 3rd defendant. Nonetheless, the following issues were included in their statement of case. These are:

(a). Whether or not the establishment of the 3rd defendant by the Government for a commercial purpose under the Companies Act, 2019, Act 992, violates article 192 of the 1992 Constitution.

(b). Whether or not the approval of the budget statement, including a request for authorization for subscription and PCOA under article 179, satisfies the requirement of article 181 of the 1992 Constitution; and

(c). Whether or not the subscription and PCOA were authorised and approved by Parliament under article 181 of the 1992 Constitution.

Before proceeding to deal with the issues raised by the parties herein, we wish to point out that, rule 50 of CI.16 requires the parties to file a joint memorandum in which shall be specified the issues agreed between them for trial by the court at the hearing of the suit. This joint memorandum is supposed to be signed by all the parties or by their respective lawyers. As pointed out above, the plaintiff and the 3rd defendant filed a joint memorandum of issues to be tried. The joint memorandum of issues was signed on behalf of the parties by their lawyers. Neither did the 1st and 2nd defendants sign this memorandum of issues nor did they file their own memorandum of issues as required by rule 50 (3) of CI.16. Nonetheless, the 1st and 2nd defendants went ahead to include, in their statement of case, issues which they want the court to determine. In our opinion, the practice adopted by the 1st and 2nd defendants is not sanctioned by the rules of court. We will, however, waive the non-compliance which we consider as not being fatal to the hearing of the case on its merit.

 

 

[7.0]. Determination of the Issues:

 

[7.1]. Incorporation of the 3rd defendant:

 

The first issue filed by the plaintiff and the 3rd defendant is whether or not 3rd defendant was validly incorporated by the Government of Ghana as a public corporation set up as a commercial venture in the manner prescribed in article 295(1) of the Constitution and the Companies Act, 2019, Act 992. This issue, in our view, is not different from the first issue set out on behalf of the 1st and 2nd defendants; which is, whether or not the establishment of the 3rd defendant by the Government for a commercial purpose under the Companies Act, 2019, Act 992, violates article 192 of the 1992 Constitution.

[7.2]. The evidence before this court, exhibits 8, 8A and 9 refer, is that the 3rd defendant herein, Ghana Amalgamated Trust Plc, was incorporated and issued with a certificate of incorporation as well as a certificate to commence business on the 17th day of December 2018. The subscriber to the shares of the 3rd defendant is named as National Trust Holding Company Limited, the 4th defendant in this matter. The 4th defendant, according to the parties, holds the shares in the 3rd defendant on behalf of the Government of the Republic of Ghana. The plaintiff’s argument is that the Government has no power to register a company under the Companies Act to engage in commercial enterprise because, that act violates article 192 of the Constitution, 1992. The plaintiff says that it requires an Act of Parliament to establish a corporation for the purposes of the State engaging in commercial venture. According to the plaintiff, the plain and ordinary meaning of articles 190(1)(b) and (4) and also article 192 of the Constitution is that “for the purposes of providing public services or engaging in commercial ventures, the State must establish ‘public corporations’ by an Act of Parliament”. This argument, as pointed out, has been strenuously challenged by the defendants.

[7.3]. Article 190 to 199 of the Constitution forms the fourteenth chapter thereof and the whole chapter is devoted to the public services of the Republic. Article 190(1)(a) lists about fourteen institutions and describes them as being part of the public service institutions of the Republic. Article 190(1) (b), (c) and (d) throws light on other institutions which are also part of the public service of Ghana. For instance, by article 190(1)(c) and (d), “public services established by this Constitution” and “such other public services as Parliament may by law prescribe” shall be part of the public service of Ghana. An example of such public service institution established in this regard is the Commission on Human Rights and Administrative Justice provided for under article 216 of the Constitution and established by the Commission on Human Rights and Administrative Justice, Act, 1993, Act 456. Article 190(1)(b) therefore provides that:

“The Public Services of Ghana shall include - public corporations other than those set up as commercial ventures”.

The Constitution does not define the term “commercial venture”. Yet, the term cannot be divorced from, and is generally associated with, business purposely established and consequently operated with the aim of making profit. In Aryee vs. State Construction Corporation [1984-86] 1 GLR 424, the Court of Appeal, speaking through Adade JSC, stated at page 434 of the report that:

“The phrase commercial venture is not defined anywhere in the Constitution, but we know from general principles that a venture or an undertaking which buys and sells with a view to profit is carrying on a commercial activity, and qualifies as a commercial venture. In this connection it does not matter what the venture buys and sells. Generally, this will be movable and immovable items, like commodities and real estates. But it may very well be the buying and selling of services (e.g. insurance companies and travel agencies), or of labour-cum-materials or labour alone (e.g. building and construction organizations), or even the buying and selling of money (e.g. the banks) … The objects are enough to convince anyone that the SCC was set up as a profit oriented Organisation … In other words, the State Construction Corporation is a public commercial venture, set up entirely out of public funds (section 2, Part III) and expected to make profits for the State, which profits must be paid regularly into the State’s coffers via the Consolidated Fund. A reading of the Instrument shows that the State Construction Corporation is expected to operate in every respect as a sound commercial venture, with an authorised capital, board of directors, etc. and to prepare annual accounts as though it were an ordinary company registered under the Companies Code, 1963 (Act 179) (see section 1, Part X of LI 521).”

[7.4]. Paragraph 2 of the Constitution of the 3rd defendant, exhibit 9 herein, states the nature of business that the 3rd defendant was established to carry out. The company is authorised to carry out the following businesses:

“(a). To issue securities and list the securities on an approved stock exchange or privately place such securities in such manner as may be determined by the directors of the company.

(b). make equity investment in selected financial and other institutions (including the GAT Banks) using proceeds from the issuance of securities; and

(c).  enter into agreements and such other arrangements and transactions in relation to the issuance and listing of securities and/or the making of equity investments as may be necessary”.

Paragraph 33 of the constitution of the 3rd defendant gives power to the company to declare dividends payable only where the company will be able to pay its debts as they fall due after such dividends is paid as stated under paragraph 35(1) of the company’s constitution. Again, dividends shall be paid only if ‘the amount of payment does not exceed the amount of the company’s retained earnings immediately prior to the making of such payments”. These provisions in the constitution of the 3rd defendant leave no doubt in our minds that the 3rd defendant was established to be run purely as a business entity with the aim of making profits which will benefit its shareholders. The 3rd defendant is therefore a commercial entity like any other commercial enterprise. The only difference being that it was established with State funds. And for the reason that the 3rd defendant is a commercial entity, article 190(1)(b) of the 1992 Constitution excludes it from being part of the public services of Ghana.

[7.5]. The plaintiff says that it is only by an Act of Parliament that the State can establish the 3rd defendant. The Plaintiff relies on article 190 (1) (b) and (4) as well as article 192 of the 1992 Constitution. Article 190(1)(b) does not by any stretch of the imagination deal with the establishment of public corporations. What it does is that it excludes public entities established for commercial ventures from being part of the public services of Ghana. Article 190(4) provides that:

“(4) For the purposes of this article “public corporation” means a public corporation established in accordance with article 192 of this Constitution other than one set up as a commercial venture”.

Sight must not be lost on the fact that article 190(1)(b) has excluded public corporations established or set up as commercial ventures from being part of the public services of Ghana. That does not mean that entities established by the State to run as commercial ventures cease to become public corporations. By the provisions of article 190(1)(b), such entities continue to bear their clothes as public corporations although they are not part of the public services of Ghana. Article 190(4) moves a step further by defining ‘public corporations’ for the purposes of article 190 only and says that public corporations which are deemed as part of the public services of Ghana shall be established in accordance with the provisions of article 192. The provisions of article 192 is that:

“A public corporation shall not be established except by an Act of Parliament”.

 

[7.6]. The effect of the provisions in article 190(4) is that it recognises the possibility of establishing some public corporations in ways other than by an Act of Parliament. However, if a public corporation is established not as a commercial venture which is to be recognised as part of the public services of Ghana; then, that public corporation must, as a constitutional requirement, be established by an Act of Parliament, so says article 192. The combined effect of the provisions in article 190(4) and 192, is the recognition of the possibility of the State establishing public corporations to run as commercial ventures in some other ways than by an Act of Parliament. Such commercial entities established by the State do not lose their status as public corporations. They are only not recognised as part of the public services of Ghana under article 190 of the Constitution, 1992.

[7.7]. A cardinal principle in the interpretation of a Constitution or a statutory document is to pay attention to other articles of the Constitution or the statute with provisions similar to the provision which is the subject matter of the dispute in order to create that harmony among all the articles of the Constitution or the statute to enable it function as one document. In the words of Bennion, “it is a rule of law that in construing an enactment the significance to be attached to each component of the Act containing the enactment must be assessed in conformity with its legislative function as a component of that type”. The “enactment is the unit of inquiry in statutory interpretation. It is however to be construed by reference to the entirety of the Act or other instrument in which it is contained”. See Bennion on Statutory Interpretation (5th ed.), (2008) page 713, section 238.

In National Media Commission vs. Attorney-General [1999-2000] 2 GLR 577, this court ruled that:

“In interpreting the Constitution, 1992 care must be taken to ensure that all the provisions work together as parts of a functioning whole. The parts must fit together logically to form a rational, internally consistent framework. And because the framework has a purpose, the parts are also to work together dynamically, each contributing something towards accomplishing the intended goal. Each provision must therefore be capable of operating without coming into conflict with any other”.

[7.8]. Article 295(1) of the Constitution, 1992 is one such article that cannot be ignored in the interpretation of articles 190(1)(b) and (4) and 192. This article provides definitions for some of the words or terms or phrases used in the Constitution. The definitions so provided by article 295(1) cannot be ignored in seeking the meaning of the phrase “public corporation” as used in the Constitution. Thus, in Okwan and Others vs. Amankwa II [1991] 1 GLR 123, the Court of Appeal, speaking through Wiredu JA. (as he then was), stated the common law principle with regard to definitions provided in an enactment when the court stated at page 131 that:

“The general rule of interpretation is that where an enactment has clearly defined particular words in its interpretation section it is uncalled for and most unnecessary to look elsewhere for the meaning of those words”.

Section 38(1) of the Interpretation Act, 2009, Act captures the common law rule and states that:

“38. Applications of interpretation provisions

 

(1) Definitions or rules of interpretation contained in an enactment apply to the construction of the provisions of the enactment which contains those definitions or rules of interpretation”.

Article 295(1) states, as far as the subject matter of the present discussion is concerned, that:

“In this Constitution, unless the context otherwise requires,

 

‘public corporation’ means a corporation or any other body of persons established by an Act of Parliament or set up out of funds provided by Parliament or other public funds”.

The expression, “in this constitution, unless the context otherwise requires”, used at the beginning of article 295(1), means that the definitions provided therein are to be applied generally and throughout the Constitution unless, under a particular article, a different meaning is assigned to a particular phrase which has been defined under article 295(1). In other words, the general meaning given under article 295(1) is to yield to meanings assigned to the same expression under a particular article. Bennion (supra) states in section 88 at page 306, this principle that:

“Where the literal meaning of a general enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the latter general one. Accordingly, the earlier specific provision is not treated as impliedly repealed”

In New Patriotic Party vs. Rawlings and Another [1993-94] 2 GLR 193, this court applied this principle of interpretation when it stated at page 195 that:

“The law with respect to general and particular or specific enactments is trite and is to the effect that where a particular or specific enactment, and a general enactment appear in the same statute, and the general enactment, taken in its most comprehensive sense, would override the specific enactment, the specific enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply... This is an application of the maxim generalia specialibus non derogant”.

[7.9]. A contrast between article 190(4) and 192 on one hand, and the provision in article 295(1) quoted above on the other hand, will mean that the definition of ‘public corporation’ stated under article 295(1) of the Constitution will govern the use of that expression wherever it appears in the Constitution without a contrary meaning provided; however, as stated in article 190(4), the meaning assigned to the expression ‘public corporation’ shall prevail and be applied restrictively to that expression used in article 190. The expression, “for the purposes of this article” which appears at the beginning of article 190(4) clearly shows that the definition of ‘public corporation’ given under clause 4 of article 190 applies only to article 190 and no other article of the Constitution. That definition is for the purpose of or the restrictive application to article 190. It must be added that article 190(4) does not purport to state how public corporations are generally to be established or set up by the State. As stated in National Media Commission vs. Attorney-General (supra), at page 587:

“Article 190(4) further points out that public corporations set up as commercial ventures are not covered by the provisions of chapter 14 of the Constitution, 1992”

In our opinion, the above definition of ‘public corporation’ in article 295(1) recognises the setting up or the establishment of public corporations by ways or means other than by an Act of Parliament. Thus, under article 295(1) of the Constitution, a public corporation may be set up or established by any of the following:

(1). An Act of Parliament, or

 

(2). Set up out of funds provided by Parliament, or

 

(3). Set up out of other public funds.

 

[7.10]. It must be emphasised that article 192 does not state that it is only by an Act of Parliament that a public corporation shall be established as contended by the plaintiff herein. But, as already stated, where a public corporation is to be set up and be part of the public services of Ghana as provided under article 190 of the Constitution, then it must, as a matter of constitutional requirement, be set up by an Act of Parliament and any such public corporation cannot be run as a commercial venture. Indeed, as contended by the defendants herein, the word ‘or’ used in article 295(1) as quoted above, is used in a disjunctive sense so as to state the various ways and manner that public corporations may be set up by the State. Indeed, great violence will be done the Constitution if the word ‘or’ used in article 295(1) is interpreted conjunctively and this will lead to absurdity. As pointed out by the 1st and the 2nd defendants in their statement of case at page 22 thereof:

“Thus, going by the plaintiff’s interpretation, the 3rd defendant and all other state- owned enterprises set up under the Companies Act with public funds for commercial purpose would be unconstitutional”

In section 312 at page 969 of his book, Bennion (supra) states, among others, that:

 

“The court seeks to avoid a construction that produces an absurd result, since this is unlikely to have been intended by Parliament. Here the courts give a very wide meaning to the concept of ‘absurdity’, using it to include virtually any result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial, or productive of a disproportionate counter-mischief”.

In applying this presumption that absurd result is not intended, Lord Millett stated in R (on an application of Edison First Power Ltd) vs. Central Valuation Officer and Another [2003] 4 All ER 209 that:

“The courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable; or absurd; or unworkable or impracticable; or merely inconvenient; or anomalous or illogical; or futile or pointless. But the strength of these presumptions depends on the degree to which a particular construction produces an unreasonable result. The more unreasonable a result, the less likely it is that Parliament intended it”.

[7.11]. From the foregoing, we hold that the 3rd defendant herein is a public corporation which was validly established by the State by virtue of the provisions in article 295(1) of the Constitution, 1992 and under the Companies Act, 2019, Act 992 to operate as a commercial venture as a result of which it does not form part of the public service of Ghana as provided under article 190 of the Constitution.

 

[8.0]. The next issue we wish to consider is whether or not the Government of Ghana can engage in a commercial venture by taking up shares in an entity registered under the Companies Act, 2019, Act 992 rather than a statutory corporation established by an Act of Parliament.

The argument by the plaintiff on this issue is that, it is only by an Act of Parliament that the State can establish a public corporation to engage in commercial ventures. The plaintiff relies on the provisions in articles 190(1)(b) and (4) as well as article 192 of the Constitution. The preceding paragraphs of this judgment have dealt, to a large extent, with this submission made on behalf of the plaintiff. Suffice it to say that article 190(1)(b)(4) and article 192 do not bear the meaning which the plaintiff has strained to put on them. As already pointed out, the definition of ‘public corporation’ contained in article 295(1) of the Constitution admits of other means or methods by which public corporations may be established. Under article 295(1) of the Constitution, the State can create public corporations by setting same up out of funds provided by the Parliament of Ghana or by the use of other public funds. These may be done in addition to establishing public corporations by the provisions of an Act of Parliament. We do not find any merit in the plaintiff’s argument on this issue.

 

[9.0] We propose to discuss issues (iii), (iv), (v) and (vi) stated in the memorandum of agreed issues filed by the plaintiff and the 3rd defendant together as they are inter- related. These issues are:

(iii). Whether or not the Government of Ghana’s subscription of 3rd defendant’s shares constitute a loan under article 181 of the Constitution.

(iv). Whether or not the Government of Ghana is required under article 181 of the Constitution to seek approval from 2nd defendant for its subscription of 3rd defendant’s shares.

(v). Whether or not the Minister for Finance’s inclusion, of a request for approval of the sum of GH₵800,000,000.00 in the 2020 budget statement as equity capitalization for 3rd defendant for its investment in certain banks in Ghana, is sanctioned by the provisions of article 179 of the 1992 Constitution and the Public Financial Management Act, 2016, Act 921, and

(vi).  Whether or not the Government of Ghana’s subscription of shares in 3rd defendant was in accordance with the requirement of the Constitution and Act 921.

[9.1]. Article 181 clause 6 defines ‘loan’ and restricts the definition and makes it applicable to article 181 only. The provision states that:

“(6) For the purposes of this article, “loan” includes any monies lent or given to or by the Government on condition of return or repayment, and any other form of borrowing or lending in respect of which

(a) monies from the Consolidated Fund or any other public fund may be used for payment or repayment; or

(b) monies from any fund by whatever name called, established for the purposes of payment or repayment whether directly or indirectly, may be used for payment or repayment”.

Thus, under article 181(6) ‘loan’ is any monies lent to the Government of Ghana on condition of return or repayment; ‘loan’ is any monies given to the Government of Ghana on condition of return or repayment; ‘loan’ is any monies given by the Government of Ghana on condition of return or repayment. Loan, under article 181(6) is also any other form of borrowing or lending in respect of which monies from the Consolidated Fund or any other public fund may be used for payment or repayment or monies from any fund however described and established for the purposes of payment or repayment whether directly or indirectly, may be used for payment or repayment. One underlying condition in respect of loans whether borrowed or lent by the Government under article 181(6) is the fact of payment or repayment of the money borrowed or lent. If the loan was given by Government to some other person or institution, the Government must expect that the monies given out as a loan will be repaid to it on a future date and if the monies were borrowed by the Government, there must be a condition that the monies will be repaid by the Government on a future date. The repayment of any such loan must come out of public funds by whatever name it may be described.

[9.2]. My lords, it is a constitutional requirement that whenever the Government gives a loan or raises a loan either for itself or for any public institution or authority, Parliamentary approval is needed. Article 181(1), (2), (3) and (4) brings this proposition to the fore. It provides that:

181. Loans

 

(1) Parliament may, by a resolution supported by the votes of a majority of all the members of Parliament, authorise the Government to enter into an agreement for the granting of a loan out of any public fund or public account.

(2) An agreement entered into under clause (1) of this article shall be laid before Parliament and shall not come into operation unless it is approved by a resolution of Parliament.

(3) No loan shall be raised by the Government on behalf of itself or any other public institution or authority otherwise than by or under the authority of an Act of Parliament.

(4) An Act of Parliament enacted in accordance with clause (3) of this article shall provide,

(a) that the terms and conditions of a loan shall be laid before Parliament and shall not come into operation unless approved by a resolution of Parliament; and

(b) that any monies received in respect of that loan shall be paid into the Consolidated Fund and form part of that Fund, or into some other public fund of Ghana either existing or created for the purposes of the loan.

(5) This article shall, with the necessary modifications by Parliament, apply to an international business or economic transaction to which the Government is a party as it applies to a loan.

A critical reading of article 181(1) will show that it applies whenever the Government wishes or intends to enter into an agreement whereby a loan is to be granted out of any public fund or account of Ghana to another party. The expression, “enter into an agreement for the granting of a loan out of any public fund or public account”, used in clause 1 of article 181 attests to this position. Here, the grantor is the Government of Ghana. The steps involve the Government securing the votes of the majority of all the members of Parliament to enter into the agreement to grant the loan out of public funds; and, thereafter, clause 2 of article 181 requires that the said agreement be laid before Parliament for approval before the agreement takes effect. It follows therefore that where the Government is raising or securing a loan for its own benefit or for the benefit of a public institution or authority, the applicable article is article 181 clauses 3 and 4.

In a similar vein, when the Government intends to raise or secure any loan either for itself or for any public institution or authority, article 181(3)(4) shall be adhered to. This article demands that loans raised for the benefit of either the Government or a public institution or authority shall be raised by or under the authority of an Act of Parliament which shall provide: (a) that the loan agreement be placed before Parliament for approval by a resolution of Parliament, and (b) that monies received from the loan agreement be paid into the Consolidated Fund or other Public Fund either existing or created for the purposes of that loan.

In Attorney-General vs. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271, this court had the opportunity to discuss article 181 of the Constitution, 1992, in general. In that case, what was mainly in issue, as summarized by Date-Bah JSC at page 292 of the report, was “the legal consequences of ‘an international business or economic transaction to which the Government of Ghana was a party’ being signed by the Government without it being laid before Parliament and without the authorisation of a resolution of Parliament supported by a majority of the members of Parliament.” The international business in question was a power purchase agreement by which the Plaintiff in that case, a United Kingdom company, agreed to generate electric power and sell same to the Government of Ghana. Ultimately, the issue turned on the validity of the power purchase agreement which was signed by the Government of Ghana without Parliamentary approval in the face of the provisions in article 181(5) of the Constitution. In the words of Date-Bah JSC at page 294:

“The plain meaning of clause (5) of article 181 of the 1992 Constitution would appear to be that where the Government of Ghana enters into ‘an international business or economic transaction’ it must comply with the requirements, mutatis mutandis, imposed by article 181 of the Constitution. Those requirements clearly include the laying of the relevant agreement before Parliament in terms of clause (1). And under clause (2), the agreement is not to come into operation unless it is approved by a resolution of Parliament”.

[9.3]. Article 181 of the 1992 Constitution embodies part of the general constitutional provisions on the concept of separation of powers and its sub-principle of checks and balances designed to ensure accountability and the prudent use and management of the resources of the country by demanding that the Executive arm of Government accounts to the people’s representatives in Parliament and explain to them the reason for raising a particular amount of loan and the use to which such loan may be put; all for the benefit and betterment of the country as a whole. The need for accountability was drummed home by this court when in Kpodo and Another vs. Attorney-General [2018-2019] 2 GLR 220, this court held that:

“Article 181(4) of the Constitution, 1992 provided that the terms and conditions of loans either granted or raised by the Government on behalf of itself or any public institution should be placed before Parliament for approval. That presupposed that the framers of the Constitution, were aware that monies received by the Government as loans would definitely be subject to terms and conditions including specification of the projects to which such loans must be applied. The application of monies from loans raised by the Government was therefore not entirely at the discretion of the Government.”

[9.4]. One of the issues under discussion is whether the sum of GH₵800,000,000.00 with which the Government subscribed to the shares of the 3rd defendant was a loan within the meaning of article 181 of the Constitution and for that matter requires approval of Parliament under that article. The answer to this question is underlined by the definition of a loan under article 181(6) of the Constitution. Exhibit 5, Parliamentary Debates (Hansard) of 2nd December 2019, exhibit 6, the Report of the Finance Committee on the Agreement by the Government of the Republic of Ghana in favour of Ghana Amalgamated Trust Plc (GAT) to support selected indigenous Ghanaian Banks…, and exhibit 7 which is the Parliamentary Debates of 21st December 2019 together, show that the sum of GH₵800,000,000.00 was not advanced by the Government of Ghana to the 3rd defendant as a loan with the intention of a repayment in the form required by article 181 of the Constitution. On the contrary, these exhibits show that the Government of Ghana applied the sum of GH₵800,000,000.00 to acquire Redeemable Preference shares in the 3rd defendant public corporation registered as a limited liability company under the Companies Act. The share acquired by the Government is held in trust on behalf of the Government by the 4th defendant, the National Trust Holding Company. The GH₵800,000,000.00 was the amount of money that the Government spent in acquiring the shares. It therefore constituted expenditure for the Government for the year in question.

Section 42 of the Companies Act, 2019, Act 992 deals with the legal nature of shares. It states that:

“42. Legal nature of shares

 

(1) The shares of a member in a company are movable property.

 

(2) The number of shares in a company and the rights and liabilities attaching to the shares are dependent on the terms of issue”.

 

 

The most classic definition of ‘share’ is that given by Farwell J, in Borland’s Trustee vs Steel [1901] 1 Ch. 279 at 288 which was approved by the House of Lords in IRC vs. Crossman [1937] A.C. 26. In the said case, Farwell J stated that:

“A share is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place, and of interest in the second, but also consisting of a series of mutual covenants entered into by all the shareholders inter se … A share is not a sum of money … but is an interest measured by a sum of money and made up of various rights contained in the contract, including the right to a sum of money of a more or less amount.”

The above authorities leave one in no doubt that in subscribing to the shares of the 3rd defendant, the Government of Ghana was taking steps to acquire property: a movable property which necessarily involves the spending of money to achieve the purpose. The Government therefore needed to budget for that expenditure and include it in the budget for the relevant year. Article 179(1) states that:

Authorisation of expenditure

 

(1) The President shall cause to be prepared and laid before Parliament at least one month before the end of the financial year, estimates of the revenues and expenditure of the Government of Ghana for the following financial year.

Section 102 of the Public Financial Management Act, 2016, Act 921 is very instructive in its definition of ‘expenditure’. It states that: ‘expenditure’ means a non-repayable and a non-repaying payment by Government, whether requited or unrequited and whether for current or capital purposes”. Here again, the element of re-payment in article 181(6) of the Constitution resurfaces such that to the extent that money is spent on an item whether of a recurrent nature or of a capital nature, that spending qualifies as an item of Government expenditure.

It follows therefore that what the Government needed as far as the acquisition of the shares were concerned, was the approval of Parliament under article 179 of the Constitution as for Government expenditure and not Parliamentary approval under article 181 as if the share acquisition were a loan to the 3rd defendant. No loan was given by the Government to the 3rd defendant and so the Government did not need Parliamentary approval of any such transaction under article 181 of the Constitution.

[9.5]. Exhibit 3 is the budget statement and economic policy of the Government of Ghana for the 2020 Financial Year. Indeed, by a resolution contained in exhibit 7, Parliamentary Debates, dated 21st December 2019 particularly at column 189 to 190, Parliament resolved and approved the sum of GH₵800,000,000.00 for the Redeemable Preference shares subscription by the Government in the 3rd defendant. This approval satisfied the requirement of article 179(2), as well as section 22 of the Public Financial Management Act which provides in particular that:

22. Approval of annual budget by Parliament

(1) Parliament shall, by the 31st of December of each financial year, consider and approve—

(a) the annual budget and the correlative work plan of Government for the ensuing financial year;

(b) the Appropriation Bill; and

 

(c) any other Bill that may be required to implement the annual budget.

 

(2) The annual budget, approved by Parliament, takes effect from the 1st day of January of the ensuing year.

Issues (iv), (v) and (vi) are accordingly resolved as aforementioned.

 

[9.6]. The next issues which we wish to consider are issues (vii) and (viii) on the memorandum of issues filed by the plaintiff and the 3rd defendant which we consider to be the same as issue (c) captured in the 1st and 2nd defendants’ statement of case. These issues are:

(vii) Whether or not the Put Call and Option Agreement (PCOA) in favour of the 3rd defendant is a loan within the meaning of article 181 of the Constitution; and,

(viii) Whether or not the PCOA was validly approved by 2nd defendant in accordance with article 181 of the Constitution.

In their issue (c), the 1st and 2nd defendants stated theirs as: whether or not the subscription and PCOA were authorised and approved by Parliament under article 181 of the 1992 Constitution.

The submission on behalf of the plaintiff on these issues is to the effect that the PCOA in favour of the 3rd defendant is essentially a framework for raising a loan through the issuance of Preference shares by the 3rd defendant to enable it invest in the selected banks. The plaintiff argues that the Government provided a guarantee to back the PCOA in case of default by the 3rd defendant to honour its commitments to the potential Preference shareholders. The plaintiff says since the guarantee will be honoured from public funds it makes the PCOA a loan within article 181(6) of the Constitution for which reason the 1st defendant should have obtained approval from the 2nd defendant which they unfortunately failed to do.

From the evidence on record, especially exhibit 6 herein, the Put Call Option Agreement (PCOA) was an agreement between the Government and the 3rd defendant by which the Government agreed to provide guarantee for the 3rd defendant to enable it raise an amount of three billion Ghana Cedis from the capital market to enable the 3rd defendant redeem the Preference Shares held by the Government in the 3rd defendant public corporation and also invest the sum of two billion and twenty million Ghana Cedis as equity in the National Investment Bank which is one of the banks that petitioned the Government for assistance.

Clearly, therefore, the Put Call Option Agreement was not a loan within the meaning of the provision in article 181(6) of the Constitution under which, to constitute a loan, whether borrowed by or lent to the Government, there must be that condition within the terms of the loan for payment or repayment on a future date. In fact, the PCOA was a guarantee to enable the 3rd defendant raise, as stated earlier, capital in the sum of GH₵3 billion for its operations from the capital market. The guarantee provided exposed the Government financially, in case the 3rd defendant is unable to pay off the amounts due to the Preference shareholders, in the event that any of them decide to exercise the option of redeeming their investment. Again, it, potentially, involves raising money from the international market which means foreign elements or investors may be involved; thus, bringing the PCOA under international business as noted under article 181(5) of the Constitution, 1992. Thus, in Attorney-General vs Balkan Energy Ghana Ltd and Others [2012] 2 SCGLR 998, this court pointed out that:

“The term “international business or economic transaction to which the Government is a party”, as stated in article 181(5) of the Constitution, if purposively construed, should not lead necessarily to the result that only agreements between entities resident abroad and the Ghana Government can be embraced within the meaning of the term. Given the complexity of contemporary international business or economic transactions, there will be transactions of such a clear international nature that they should come within any reasonable definition of an international business or economic transaction, but which may have been concluded with the Ghana Government by an entity resident in Ghana. In such a situation our view is that the substance rather than the form should prevail…. We think that a business transaction is ‘international’ within the context of article 181(5) where the nature of the business which is the subject matter of the transaction is international in the sense of having a significant foreign element or the parties to the transaction (other than the Government) have a foreign nationality or resident in different countries or, in the case of companies, the place of their central management and control is outside Ghana.

The word ‘significant’ is used in the above definition to denote the fact that the foreign elements or contacts that lead to a judgment of internationality in relation to a transaction, have to be subjected to a qualitative assessment before reaching that judgment.”

[9.7]. For these reasons, there was the need for the Government to obtain Parliamentary approval, at least, under article 181(5) of the Constitution, 1992. The Parliamentary Debates of 21st December 2019, exhibit 7 herein, show at column 189 that the said agreement was laid before Parliament which, by a resolution, adopted same. Hence, we hold that the terms of the Put Call Option Agreement between the Government of Ghana and the 3rd defendant was duly placed before Parliament in accordance with the requirements of article 181(5) of the Constitution and duly approved by Parliament.

[9.8]. In his statement of case, the “plaintiff contends that article 181(3) of the Constitution does not contemplate raising a loan for a non-state or private entities. Those entities that a loan can be raised for contemplated in article 181(3) all have public character. The plaintiff titles his submission that ‘the Government cannot lend to a private entity’. The 3rd defendant on the other hand, says that this issue does not arise because 3rd defendant is not a private entity. We have found that the 3rd defendant is a public corporation set up under the Companies Act, 2019, Act 992 to run as a commercial venture. Nonetheless, the question posed by the plaintiff is very significant such that it cannot be swept under the carpet. The 3rd defendant being a public corporation cannot be described as a private entity by the plaintiff, and the fact that it was registered under the Companies Act does not make 3rd defendant a private entity. Article 181(3) and (4) talks about the Government raising loans either for itself or for any other public institution or authority. This article does not deal with a situation where Government decides to lend money to private entities. Article 181(3) is about Government borrowing monies from other sources. However, where Government decides to lend money or grant a loan out of public funds or public account, then resort ought to be made to the provisions in article 181(1) and (2) of the Constitution.

The procedure involves a two-step approach. First, the Government requires authority from the majority of all the members of Parliament given by a resolution to enter into an agreement for the granting of a loan out of public funds or public account and after the agreement has been made, the Government shall lay the said agreement before Parliament for approval before it comes into operation. It is therefore incorrect for the 3rd defendant to submit, at paragraph 106 of its statement of case, that “the procedure for Parliamentary approval of loan agreements set out in article 181(1) and (2) simply requires Government to submit the loan agreement to Parliament for its approval. It is not required that there should be a two-staged or bifurcated approval process”. A true and proper interpretation of article 181(1) and (2) calls for a two-step approach where Government intends to grant loan out of public fund or out of any public account as espoused above.

There is nothing in article 181(1) and (2) that forbids Government from granting loans to private entities. However, it is logical to argue that if Government can borrow monies from private sources then Government can equally lend monies to private entitles. The most important condition is that Parliamentary approval is required before such loans can be granted by Government.

[9.9]. Conclusion:

 

In conclusion, we find and hold that the 3rd defendant is a public corporation validly established as a commercial venture under the Companies Act, 2019, Act 992 and also under article 295(1) of the Constitution, 1992. We also hold that there is no provision in the Constitution that prohibits the Government of Ghana from establishing public corporations under the Companies Act to engage in commercial ventures. We further hold that the subscription to the Redeemable Preference Shares by the Government in the 3rd defendant in the sum of GH₵800,000,000.00 was not a loan under article 181(6) but part of Government expenditure for which the Government duly obtained Parliamentary approval under article 179 of the Constitution as opposed to article 181. We hold finally that the Put Call and Option Agreement (PCOA) by which the Government provided guarantee to enable the 3rd defendant raise about GH₵3 billion for its investment activities was not a loan under article 181(6), but qualifies as international business under article 181(5) of the Constitution and that the Government obtained the necessary Parliamentary approval as required by the Constitution. For all the reasons given in this judgment, we find no merit in the plaintiff’s claims which are accordingly dismissed.

 

 

(SGD)                                   S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

 

 

(SGD)                      G. SACKEY TORKORNOO (MRS.) (CHIEF JUSTICE)

 

 

(SGD)                                   P. BAFFOE-BONNIE (JUSTICE OF THE SUPREME COURT)

 

 

(SGD)                         A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT)

(SGD)                 PROF. H. J. A. N. MENSA-BONSU (MRS.)

(JUSTICE OF THE SUPREME COURT)

 

 

(SGD)                                E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT)

 

 

(SGD)                                       E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 

 

 

COUNSEL

THADDEUS SORY ESQ. FOR THE PLAINTIFF. WITH BEATRICE DADSON ESQ. AND BENJAMIN OFORI ESQ.

ACE ANAN ANKOMAH ESQ. FOR 3RD DEFENDANT WITH HIM, DAAD AKWESI ESQ. AND PAPA KWAKU ANAN ANKOMAH ESQ.

AKAWARI ATINDEM (SENIOR STATE ATTORNEY) FOR 1ST & 2ND DEFENDANTS.