ELIKPLIM L. AGBEMAVA VRS THE ATTORNEY GENERAL

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- A.D. 2024



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

PWAMANG JSC

PROF. MENSA-BONSU (MRS.) JSC

ASIEDU JSC

GAEWU JSC

DARKO ASARE JSC

ADJEI-FRIMPONG JSC

WRIT NO.

J1/05/2017

22ND MAY, 2024

ELIKPLIM L. AGBEMAVA …………… PLAINTIFF

VRS

ATTORNEY GENERAL …………… DEFENDANT

JUDGMENT

DARKO ASARE JSC:

 

My Lords, the Plaintiff says that his motivation for bringing this case is to ensure that the foundational values of our Constitution namely; probity, accountability and transparency are not undermined by Parliament through the provisions of the Petroleum (Exploration and Production) Act 2016 (Act 919). He contends that under Act 919, Parliament appears to have waived its constitutional power under article 181 of supervisory control over all loans and international business or economic transactions entered into by the Government of Ghana as explained by the Supreme Court in a long line of cases, including, Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271, Attorney General v Balkan Energy [2012] 2 SCGLR 998 . This is how the eminent Date Bah, JSC expressed in flowery language the value of article 181 in the case of Attorney General v Balkan Energy (supra) at page 1033 of the Report:-

 

“The sunlight of Parliamentary scrutiny of major transactions entered into by the Executive is likely to be a powerful spur to probity…..”

 

These important values of probity and accountability to our constitutional architecture are not lost on us as we proceed to address the issues raised for our consideration by the Plaintiff’s action.

 

Reliefs

 

The Plaintiff is a citizen of Ghana and a private legal practitioner by profession. On the 13th of December 2016 he filed the action herein against the Attorney General, the Defendant herein, claiming the following reliefs:-

 

i) A declaration that on a true and proper interpretation of Article 181 of the 1992 Constitution of the Republic of Ghana, Parliament lacks the power to whittle down the effect of the mandatory constitutional injunction that all loans (without any distinction) must be laid before Parliament for approval before they can come into force or become operational.

ii) A declaration that on a true and proper interpretation of Article 181 of the Constitution, Section 10 sub-section 15 of the Petroleum (Exploration and Production) Act 2016 (Act 919) in so far as it purports to exclude or exempt loan agreements of certain financial values entered into by the state, for the purpose of exploitation, development and production of crude oil and natural gas, from parliamentary approval and scrutiny is contrary to Article 181 of the Constitution and therefore unconstitutional.

iii) A declaration that any loan agreement entered into by the State or any public entity without Parliamentary approval by virtue of Section 10 sub-section 15 of the Petroleum (Exploration and Production) Act 2016 (Act 919) for the purpose of exploration, development and production of crude oil and natural gas is unconstitutional, void and of no legal effect.

iv) Any other order or orders as this Honorable Court may deem fit."

 

Facts

 

By his Statement of Case accompanying his writ, the Plaintiff averred, that on the 21st day of July 2016, Parliament considered the Petroleum (Exploration and Production) Bill, 2016 for passage into law. Following a number of proposed amendments, the Bill was eventually passed into law on the 4th of August 2016 titled the Petroleum (Exploration and Development) Act 2016, (Act 919). Contending that section 10(15) granted an exemption to the Ghana National Petroleum Corporation (GNPC), the Ministry of Finance, Petroleum Commission or any other organ of State from seeking Parliamentary approval before raising loans up to an amount of USD$30m, and that this was contrary to Article 181(3) of the Constitution, the Plaintiff has mounted this action for, inter alia, the impugned section 10(15) to be declared a nullity.

 

Jurisdiction

 

The suit seeks to invoke the original jurisdiction of this Court under the provisions of Article 2(1) and 130(1) of the 1992 Constitution. That being the case, we, as a matter of primacy, need to satisfy ourselves as to whether our jurisdiction has been properly invoked. This is so because jurisdiction goes to the root of every court proceedings and even when the Parties themselves do not raise any jurisdictional issue, the duty lies on the Court first and foremost to satisfy itself that it has been vested with appropriate jurisdiction over the case.

 

The above principle of the law has been explained by Acquah JSC (as he then was) in the case of Attorney General (No. 2) vs. Tsatsu Tsikata (No. 2) [2001-2002] SCGLR 620, at page 646 where after affirming the time honoured proposition of the law that jurisdiction is so fundamental that its absence nullifies all ensuing proceedings, then went on to express himself as follows:-

 

“It is therefore trite knowledge that the first duty of every judge in any proceedings is to satisfy himself that he has jurisdiction in the matter before him. For the issue of jurisdiction can be raised at any time, even after judgment. Thus whether the parties raise the issue of jurisdiction or not, the court is duty bound to consider it.”

 

It bears noting that the jurisdiction of the Supreme Court under Article 2(1) and 130(1) of the 1992 Constitution has been described as a special one that can only be invoked in cases where a real or genuine issue of interpretation or enforcement of a provision of the Constitution properly arises.

 

The oft-quoted and lucid articulation of the governing principles in Republic v Special Tribunal; Ex parte Akosah [1980] GLR 592 by Anin JA, has been accepted as the locus classicus on the above point. At page 605 of the Report, Anin JA stated as follows:-

 

"From the foregoing dicta, we would conclude that an issue of enforcement or interpretation of a provision of the Constitution under article 118(1)(a) arises in any of the following eventualities:

(a) where the words of the provision are imprecise or unclear or ambiguous. Put in another way, it arises if one party invites the court to declare that the words of the article have a double- meaning or are obscure or else mean something different from or more than what they say;

(b) where the rival meanings have been placed by the litigants on the words of any provision of the Constitution;

(c) where there is a conflict in the meaning and effect of two or more articles of the Constitution, and the question is raised as to which provision should prevail;

(d) where on the face of the provisions, there is a conflict between the operation of particular institutions set up under the Constitution, and thereby raising problems of enforcement and of interpretation.

On the other hand, there is no case of "enforcement or interpretation" where the language of the article of the Constitution is clear, precise and unambiguous. In such an eventuality, the aggrieved party may appeal in the usual way to a higher court against what he may consider to be an erroneous construction of those words; and he should certainly not invoke the Supreme Court's original jurisdiction under article 118. Again, where the submission made relates to no more that a proper application of the provisions of the Constitution to the facts in issue, this is a matter for the trial court to deal with; and no case for interpretation arises."

 

The authorities make it clear that this special jurisdiction is not meant to be resorted to or to be exercised in a case in which jurisdiction is also vested in a lower court. See: Gbedemah vrs. Awoonor-Williams, (1969) 2 G&G 438 Tait, vrs Ghana Airways Corporation (1970)2 G & G 527, Yiadom vrs Amaniampong (1981) GLR 3 SC, Edusei vrs Attorney-General (1996-97) SCGLR 1.

 

We have read plaintiff’s relief (i) and we find it rather vague. In the relief the plaintiff complains that Parliament by section 10(15) of Act 919 sought to “whittle down” the provision of article 181(3) of the Constitution. In our considered view however, this relief does not conjure any cause of action under the Constitution that can be adjudicated by the court. How is the court expected to determine whether there is a whittling down of the provision, and by what degree? The plaintiff says he brings his action under article 2(1) of the Constitution and article 2(1) provides as follows;

 

A person who alleges that -

(a)  an enactment or anything contained in or done under the authority of that or any other enactment; or

(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.

 

From the provision, our jurisdiction would be properly invoked if the plaintiff alleges that section 10(15) of Act 919 is “inconsistent with or in contravention of” article 181(3) of the Constitution. This the plaintiff has pleaded in his relief (ii) and we fail to see the need for this pleading in relief (i). Lawyers trained in the law when preparing legal processes must observe strictly the forensic language required to accurately convey their case or that of their clients to the court to enable the court render a precise decision. Resorting to loose and imprecise ordinary English in the face of a statutorily defined cause of action would be unable to trigger the jurisdiction of the court, especially that of the Supreme Court which is a special one.

 

Furthermore, there is no allegation in relief (i) of any breach or threatened breach of any constitutional provision. It is a bare, arid relief which no more than merely refers to what the Constitution generally provides for, without more. In the celebrated case of Blackburn v Attorney General [1971] 2 ALL ER 1380, it was said per Stamp LJ at page 1383 that it was no part of the Court’s function to make declarations in general terms regarding the powers of Parliament, particularly where the circumstances in which the court was asked to intervene were hypothetical.

Adade JSC in the case of Bilson v. Attorney-General [1993-94] 1 GLR 104 at page 105, cautioned against parties coming to court to pray for sterile declarations in the following words:-

 

"Take, for instance, the declaration sought under paragraph (b) of the writ. The Plaintiff wants the court to declare that: '(i) all persons in Ghana are equal before the law' and he himself says that that statement is in Article 17(1) of the Constitution. I agree with him that Article 17(1) says so. But does the Court have to declare that the article says so? In any case where will such a declaration take the Plaintiff or anyone else? Again, has any person impeded the plaintiff’s access to the law? In the absence of an allegation to that effect, what is the point in merely repeating the second limb of Article 23 in the form of a declaration?

 

The first of the Plaintiff’s relief (i) which merely seeks a confirmatory declaration on certain provisions of the Constitution, is also so vague, desultory and indeterminate that it can hardly form a valid foundation for invoking the special jurisdiction of this Court under Article 2(1) of the Constitution. It is incompetent, gives rise to no cause of action, and is hereby struck out. See also the views of Sophia Akufo in Sam v Attorney- General [2000] SCGLR 102

 

Secondly, relief (iii) endorsed by the plaintiff on his writ fails to meet the test of constitutional controversy that ought to invoke the jurisdiction of the court. The plaintiff’s substantive relief concerns Act 919 which deals with special types of loans by the GNPC, namely loans entered into for the exploration and production of petroleum resources of the country, but plaintiff springs from that to pray for orders in respect of ALL LOANS by ANY STATE OR PUBLIC ENTITY.

Even if the court accepts the case argued by the plaintiff with regard to Act 919 and GNPC, that can never be extrapolated to ALL LOANS by ANY STATE OR PUBLIC ENTITY. To be clear, there is no correlation, casual or otherwise, between the plaintiff’s prayer for a prohibition or restriction on a special loan being raised by GNPC, and the restriction he seeks to impose against ALL LOANS being raised by ALL PUBLIC ENTITIES. Besides, by referring to all loans by any state or public entity, relief (iii) is vague, ambiguous, indeterminate and incapable of invoking the jurisdiction of the Court. Accordingly, relief (iii) is equally struck off. 

 

From the plaintiff’s writ and statement of case, it is only his relief (ii) that arouses the jurisdiction of this court. There he is seeking a declaration that section 10(15) of Act 919 is inconsistent with article 181(3) of the Constitution, 1992 and that brings him squarely within the ambit of article 2(1) of the Constitution. Accordingly, we shall examine the arguments of the parties to determine whether plaintiff has made out a case for that declaration he seeks.

 

Memorandum of Issues

 

The following joint issues were agreed upon by the Parties for determination.

i) Whether the Parliament of Ghana has the Power to exempt some state or public loan agreements from the requirement of parliamentary approval under Article 181(3) and (4) of the 1992 Constitution?

ii) Whether Section 10 subsection 15 of the Petroleum (Exploration and Production) Act, 2016 (Act 919) is contrary to Article 181 (3) and (4) of the 1992 Constitution and therefore unconstitutional?

iii) Whether the Ghana National Petroleum Corporation (G.N.P.C.) is a limited liability company?

iv) Whether or not upon on a true and proper interpretation of section 10(15) of the Petroleum (Exploration and Production) Act, 2016 (Act 919) all loans and borrowings by the Ghana National Petroleum Corporation require parliamentary approval?

v) Whether any loan agreement entered into by the state or any other public entity without Parliamentary approval under section 10(15) of the Petroleum (Exploration and Production) Act, 2016 (Act 919) for the purpose of exploration, development, and production of crude oil and natural gas is unconstitutional?

 

Arguments by Parties

 

Both Parties filed their written briefs accompanying their respective claim and defence to the action herein. Upon subsequent Orders by the Court, additional written briefs were filed by the Parties, all of which we have fully considered and analysed.

 

Plaintiff’s Arguments

 

In his written brief in support of his case, the Plaintiff referred copiously to the provisions of Article 181 of the Constitution and argued that the clauses which were germane to his instant action were clauses (3) and (4), which provide that no loan shall be raised by government on behalf of itself or any other public institution or authority otherwise than by or under the authority of an act of parliament. Plaintiff then refers to the Petroleum (Exploration and Production) Act, 2016 (Act 919) and argued that since that legislation primarily concerns the activities of three key institutions apart from Government, namely, the Petroleum Commission, the Ghana National Petroleum Corporation, and the Ministry of Finance, any borrowing undertaken by any of these institutions by virtue of the provisions of section 10 (15) of Act 919 has to require Parliamentary approval. This is so, because according to the Plaintiff, Act 919 governs the management of the natural resources of the State, and therefore neither Parliament nor the Attorney General or GNPC can divorce any borrowing done under the Act from the interest of the State and public interest. He therefore submitted that section 10 (15) of Act 919 fails to comply with clauses 3 and 4 of Article 181 since it purports to exempt loans below USD$30m raised by the GNPC from prior Parliamentary approval. Plaintiff further contended that Act 191 falls foul of the provisions of Article 181(4) of the Constitution, to the extent that it failed to make provision for monies received from loans raised under Act 919 to be paid into the Consolidated Fund. By failing therefore to comply with the provisions of Article 181(3) and (4) of the Constitution, Plaintiff submitted, section 10(15) of Act 919 constitutes an infringement of the Constitution and must be struck down.

 

The point was also taken before us in argument that if by the provisions of the Public Financial Management Act, 2016, (Act 921) and Article 181 of the Constitution, government cannot raise even a pesewa as a loan without the authority of Parliament, then it stands to reason that loan agreements no matter the quantum, meant for the purpose of exploration, development and production of petroleum, cannot be raised by any party mentioned in section 10 of Act 919 otherwise than or under the authority of an Act of Parliament. That being the case, so run Plaintiff’s argument, section 10(15) of Act 919 which seeks to exempt public institutions from Parliamentary oversight in respect of borrowing and other economic transactions is inconsistent with the Constitution and therefore a nullity.

 

Defendant’s Arguments

 

In response, the Defendant contested the Plaintiff’s case from a number of standpoints. The main point of the defendant was that the plaintiff has failed to distinguish between Government as intended in article 181 of the Constitution and GNPC which is not government but a public corporation set up by government as a commercial venture. In the plaintiff’s supplementary submissions he conceded that his initial statement of case did not take account of the previous decisions of the Supreme Court that interpreted Government in article 181 to be in reference to central government excluding public corporations set up as commercial ventures. But the defendant further argued, that first, there is nothing in Article 181(3) to suggest that public institutions, like the GNPC are constitutionally mandated to seek prior parliamentary approval before raising loans. Secondly, he contended that to bring public entities set up as commercial ventures and for that matter the GNPC directly under Article 181(3) of the 1992 Constitution, would cripple their ability to perform their commercial functions in a manner required by law. The Defendant in response to the plaintiff’s reliance on the Public Financial Management Act, 2016 (Act 921) stated that Act 921 permits a Public Corporation, subject to approval of the Minister for Finance to borrow to fund its operation where it does not involve a guarantee by Government.

The defendant explained a distinction between the provisions of Act 919 with regard to Petroleum Agreements for the exploration, development and production of petroleum and the provisions relating to the conduct of GNPC as a state corporation that participates in petroleum exploration, development and production on behalf of the state. He referred to section 1 of Act 919 which stipulates that a Petroleum Agreement shall be entered into by a body corporate, the Republic of Ghana and the Corporation, meaning GNPC. By this, GNPC becomes a party to a Petroleum Agreement with certain roles to play. On the strength of its balance sheet it can also borrow money for its operations. The defendant argued that when GNPC is borrowing on the strength of its balance sheet in this manner, it does not ordinarily require parliamentary approval, since Article 181 (3) does not cover such public corporations. The issue of parliamentary approval will only arise where central government borrows on behalf of the GNPC. Relying on the strength of Klomega (No. 2) v A-G & Ghana Ports and Harbours Authority & Ors. (2013-2014) 1 SCGLR 581 and Assibey Yeboah v Electricity Corporation of Ghana. Civil Appeal No. J1/7/2016 dated the 28th of July 2016, Defendant invites us to hold that the GNPC as a juristic person is different from central government and is not covered by Article 181 (3) of the 1992 Constitution. At paragraph 43 of his statement of case filed on the 7th of March 2024 pursuant to order of court, the Defendant submitted as follows:-

 

“It is our submission that Act 919 recognizes and acknowledges the specialized nature of petroleum industry and the need for flexibility in financing arrangements so as to remain competitive in the global market. Act 919 therefore seeks to create a balance between the flexibility of engaging in commercial transactions in the industry and accountability, hence the provision of a threshold to ensure that the GNPC is not crippled by excessive bureaucratic procedures but is allowed a certain threshold of flexibility.”

 

On the plaintiff’s claim that his preferred interpretation of article 181 will engender accountability and transparency in the management of the states petroleum resources, the Defendant submitted that there were adequate mechanisms under both the Public Financial Management Act, 2016 (Act 921) as well as the GNPC’s enabling statute (PNDCL 64) to ensure accountability and transparency in the manner in which the GNPC conducts its financial affairs. Consequently, it was not necessary to impute any requirement for parliamentary approval under Article 181(3) for the loans it could raise under the provisions of Act 919.

 

Consideration of Issues

 

In our considered view, the fundamental issues to be resolved in this action, after a careful examination of all the materials on record alongside the rival arguments urged upon the Court by the Parties in their respective written briefs are two fold and can be stated thus:—

 

a) Whether or not upon a true and proper interpretation of Article 181(3) of the 1992 Constitution, public institutions and state agencies cannot raise loans on their own except with prior approval from Parliament; and

b) Whether or not section 10(15) of Act 919 is inconsistent with the Constitution and to the extent of that inconsistency is void?

 

We would commence our inquiry by reminding ourselves of perhaps one of the core principles of constitutional interpretation applicable in cases relating to judicial review of legislative action, to wit the presumption of constitutional validity of enactments of Parliament. The principle is that "to doubt the constitutional validity of a law, is to resolve it in favour of its validity. In other words, doubts are resolved in favour of constitutionality and not the person challenging or attacking it." by Wood JSC in case titled no. J1/8/2009 Daasebre Nana Baah III & 4 Ors v The Attorney- General & Electoral Commission, dated 18th February 2010.

 

In the case of Republic v Tommy Thompson Books Ltd. Quarcoo & Coomson [1996-97] SCGLR 804 at 851, Kpegah JSC explained the same principle in the following terms:-

 

“the first point to note is that there is a presumption in favour of validity when one is considering a legislation, even a law which imposes limitations on free speech is presumed valid till the proponent of invalidity or assailant of the law shows otherwise”

 

The above authorities serve to emphasise the point that at all material times in this suit, the burden of displacing the presumption of constitutional validity of section 10(15) of Act 919 rests on the Plaintiff.

 

Another important principle of interpretation which must guide the Court in addressing the issues raised in this suit is the principle of harmonious interpretation of statutes to avoid conflicts with other provisions of related enactments and their interpretations by the courts. On this point Acquah JSC in the case of National Media Commission vrs Attorney-General 2000 SCGLR, observed as follows:-

 

"Accordingly, in interpreting the Constitution, 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 rational, internally consistent frame work. And because the frame work has a purpose, the parts are also to work dynamically, each workings accomplishing the intended goal."

 

Finally, another principle of constitutional interpretation relevant on account of the issues raised for determination in this action, is the principle of interpretation to avoid absurdities. See the case of Agyei Twum v Attorney-General and Anor [2005- 2006] SCGLR 732.

 

With these guiding principles of constitutional interpretation at the back of our minds, we proceed to tackle the issues we set out supra.

 

WHETHER OR NOT UPON A TRUE AND PROPER INTERPRETATION OF ARTICLE 181(3) OF THE 1992 CONSTITUTION, PUBLIC INSTITUTIONS AND STATE AGENCIES CANNOT RAISE LOANS ON THEIR OWN EXCEPT WITH PRIOR APPROVAL FROM PARLIAMENT;

 

The jurisprudence of this court on article 181 has settled that “Government” in the article refers to central government and does not include public corporations established as commercial ventures. That notwithstanding, the effect of the arguments of the plaintiff in this case are for the court to revisit this interpretation and depart from it. This he seeks to do by inviting us to make an exception in relation to GNPC, when it is borrowing any amount no matter the value, to be applied in the exploration, development and production of petroleum resources of the country. By his arguments the plaintiff is calling for a new interpretation of “Government” in article 181 that is expansive. The primary issue is therefore;

 

Whether the wording of article 181(3) suggests a restrictive interpretation applying only to central government or encompasses other government agencies;

Article 181 of the 1992 Constitution which is the pivot around which this dispute turns, reads as follows:-

(1) Parliament may, be 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 they have been approved by a resolution of Parliament; and

(b) that any moneys 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.

(6) For the purposes of this article, "loan" includes any moneys 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)  moneys from the Consolidated Fund or any other public fund may be used for payment or repayment; or

(b)  moneys 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.

(7)   The Minister responsible for finance shall, at such times as Parliament may determine, present to Parliament any information concerning any discrepancies relating to -

(a)  the granting of loans, their repayment and servicing;

 

(b) the payment into the Consolidated Fund or other public fund of moneys derived from loans raised on institutions outside Ghana.

Section 10 (15) of Act 919 provides as follows:-

 

"Any borrowing exceeding the cedi equivalent of thirty million United States Dollars for the purpose of exploration, development and production shall be approved by Parliament and shall be in consonance with the Petroleum Revenue Management Act, 2011 (Act 815)"

 

A plain casual reading of article 181 leaves no doubt that the operative phrase therein is “Government”. The article comes into operation when government is “raising loans on its own behalf or on behalf of other public institutions and authorities.” . Since the draftsman is explicit that the article becomes operational in two different circumstances, to wit, when government itself is borrowing or where it is borrowing on behalf of other public institution, we find it hard to accept the arguments of the plaintiff that the two circumstances mean the same thing. The provision does not say anything about where the other public institution or authority itself is borrowing for itself but the plaintiff is inserting it in article 181 and we are unable to accept that.

 

In the case of Klomega (No. 2) v A-G & Ghana Ports and Harbours Authority & Ors. (2013-2014) 1 SCGLR 581 at page 599, Date Bah JSC speaking on behalf of the Supreme Court observed thus:-

 

“Where an agency has a separate legal personality distinct from central government, it usually comes under sectoral ministerial supervision. The Board of the corporation and the appropriate Ministry should then exercise oversight over its international business or economic agreements. That oversight should be exercised within the context of the procurement laws of this country. Parliament would be sucked into unnecessary minutiae if it were to have the function of approving the international business or economic agreements of statutory corporations. That is why “Government”, in the context of article 181(5), should be interpreted purposively to exclude corporations such as the 2nd defendant. This interpretation is the only reasonable one, if one reads the Constitution as an organic whole.”

 

Then at page 603 of the Klomega (N0. 2) Report, Date Bah JSC concluded thus:-

 

“In short, article 181(5) is to be interpreted as follows: generally, the contracts of statutory corporations are not within the ambit of the provision. However, in exceptional circumstances, through the application of a customized Ghanaian version of the doctrine of alter ego, the contracts of a Ghanaian statutory corporation could be brought within the intendment of article 181(5).”

Significantly, it is not suggested by the Plaintiff in this case that the GNPC falls within the category of an alter ego of central Government as defined by Date Bah JSC in the Klomega case. It follows therefore that this instant case cannot be distinguished from the Klomega case on account of GNPC being an alter ego of central government.

 

The decision in the Klomegah case was followed and applied in the case of Assibey Yeboah v Electricity Corporation of Ghana. Civil Appeal No. J1/7/2016 dated the 28th of July 2016, where the Supreme Court speaking through Dotse JSC stated as follows:-

 

“From the nature of the transactions in the instant case, it is clear that the 1st and 2nd Defendants, as juristic persons had the capacity to enter into the transactions they entered into with the relevant institutions without seeking parliamentary approval as stipulated in article 181 (5) of the Constitution. This is because, the position of the 1st and 2nd defendants herein are just like those of the Ghana Ports and Harbours Authority Defendants therein in the Klomegah (No.2) case (supra). That being the case, we are of the considered view that the role of Government in the instant transactions exemplified by the letter of Comfort does not really qualify Government to be made a party using all the criteria’s mentioned in the said judgment. These are the substance or form, or the nature and party criteria.”

 

We think it may be useful to note the similarities between the facts of the Assibey Yeboah case and the instant case. Both cases deal with the GNPC in respect of either an international business transaction or a loan transaction. Meanwhile, the effect of the Supreme Court’s decision in both Klomega and Assibey Yeboah is that regardless of whether the matter concerns a business or loan transaction, Article 181 applies only to central government and not “…..operationally autonomous agencies of government.

In our considered opinion, this subsisting jurisprudence that distinguishes between central government as opposed to “…..operationally autonomous agencies of government” is so cogent, plain and reasonable on the face of article 181 that we find no justification to depart from it. This meaning ascribed to the word "Government" in Article 181, is the ordinary natural interpretation of Article 181(3). It must simply mean that the requirement of Parliamentary approval becomes necessary only when the loan is being raised by central Government “….on its own behalf or on behalf of other public institutions and authorities.”. There is nothing, in the text of Article 181(3) of the Constitution which in the natural ordinary sense, conveys the meaning, that absent Parliamentary approval, public institutions or statutory corporations, especially those set up for commercial objectives, are barred from independently raising loans for their own use.

 

An identity of reasoning likely informed the decision of the Supreme Court in the case of Ndebugre v Attorney-General Unreported; Writ No J1/5/2013; 20th April 2016; SC per Atuguba JSC as follows:-

 

“The purpose of requiring parliamentary approval of agreements or measures of critical national importance has been held by this court to be to ensure transparency, openness and parliamentary consent in the national interest, but this court has never attributed an overbreadth role to parliament in such matters beyond the parameters of the particular matter in regard to which such parliamentary approval is required”

 

In an attempt to distinguish the case of Klomega (supra) from the facts of the instant case, Plaintiff further submits that the Klomega case must be restricted only to an interpretation of Article 181(5) whilst the instant case deals exclusively with Articles 181(3) and (4), which were left unconsidered by the Supreme Court in Klomega. He concludes by inviting us to say that this action is about the interpretation of Articles 181

(3) and not 181(5)

This is how Plaintiff expressed himself at paragraphs 9 and 10 of his written briefs filed on the 19th of February 2024 pursuant to leave of this Court:-

 

9. My Lords, we have come to accept that such public entities set up as commercial ventures do not require parliamentary approval only because the issue of parliamentary approval under Article 181(5) came up for determination in the Klomega case supra. This case did not determine any issue with regards to Article 181(3) of the 1992 Constitution …..

10. My Lords the Klomega case (supra) determined only the issue of parliamentary approval with regards to international business transactions or economic transactions as provided by Article 181(5) of the 1992 Constitution”

 

With due respect, not only is the reasoning behind Plaintiff’s above submissions misguided, but it is also premised on a faulty understanding of Article 181(5) as well as this Court’s decision in Klomega.

 

In the first place, it is not true that Article 181(5) deals only with international business transactions. On the contrary it applies as much to international business transactions as it applies to loan transactions. That understanding is very clear, free from any ambiguity, from even a casual reading of Article 181(5).

 

Secondly, Plaintiff’s argument implies that the legislature intended to use the same words in different ways in the same statute, without providing any clear indication of such intent. This is unacceptable.

 

It is a fundamental rule of statutory interpretation that the same word or phrase be given a single, consistent meaning throughout the statute, unless the context clearly indicates otherwise. That is the principle of harmony and uniformity, laid down in a plethora of respectable authority including the famous views expressed by Acquah JSC in the case of National Media Commission vrs Attorney-General, already cited above. The Plaintiff’s argument in this case simply strikes a prodigious discord with the settled canon of interpretation which requires that statutes be construed within their contextual moorings and not otherwise

 

It must be noted that in these matters, there is hardly any room for implicit or implied impositions. Where the Constitution intends to impose any limitations or impositions and require Parliamentary approval as a condition precedent necessary for a public institution or government agency, to raise any loans by itself, these must expressly be stated, unless of course implicit restrictions can without any doubt be necessarily deduced from the requisite laws.

 

In Kuenyehia and Others v Archer and Others [1993-94] 2 GLR 525 at page 605- 606 Bamford-Adddo JSC stated as follows:-

 

“The first principle of interpretation is to give words in a statute their ordinary meaning; if this yields a reasonable result the matter ends there, if not then one goes on to apply other cannons of statutory interpretation.”

 

The Plaintiff has proceeded from a faulty legal premise as article 181 does not say anything about borrowing by an autonomous public institution or authority borrowing by and for itself.

 

It follows therefore that we would be endorsing a foundation that repudiates existing binding precedent, should we accept the interpretation pressed on us by the Plaintiff in this case, and construe Article 181(3) in a manner that requires all public institutions, just like central government, to subject their borrowing powers to parliamentary control, scrutiny and oversight. Plaintiff is simply precluded by stare decisis from re-opening that litigation. The weight of authority compels us to follow the well-trodden path of prior decisions like the Klomega and Assibey Yeboah cases.

 

It is true that under article 129(3) the Supreme Court may depart from its previous decision. However, this may be done, only when it appears right to do so. The arguments by the plaintiff do not make it right for us to depart from Klomega and the cases that followed it.

 

As succinctly explained by Adinyira JSC in the case of Abdulai Yusif Fanash Muhammed v The Attorney-General [Unreported; Writ No. J1/2/2016; 3rd March 2016; SC] :-

 

“Though by article 129(3) the Supreme Court may depart from its own previous decision, the place for inviting the Court to do so is not by invoking our original jurisdiction by simply clothing a relief as an interpretation issue.”

 

If a party decides to bring a case concerning a provision of the Constitution, the party or his lawyer ought to be diligent researching whether the Supreme Court has not already interpreted the provision and to apply that provision to advise himself or his client. If the party or his lawyer is aware that the provision has previously been interpreted by the Supreme Court but he intends to argue for the court to depart from its previous decision, then he must undertake diligent research and marshal concrete and persuasive arguments before approaching the court. We do not find that the plaintiff in this case who is a lawyer properly advised himself before mounting this action. Motivations of advancing probity and accountability may be commendable but if they are to be pursued through litigation then attention must be paid to the requirements of the law.

CONCLUSION

The sum effect of our discussion of the case presented by the plaintiff is that section 10(15) of Act 919 does not infringe article 181(3) of the Constitution. The whole of the plaintiff’s case is mounted on a misreading and strained interpretation of the provisions of article 181 of the Constitution. In conclusion therefore, for the reasons explained above, the Plaintiff has failed to successfully make out a valid case. We accordingly dismiss his relief (ii), having earlier struck out the other reliefs. The Plaintiff’s action fails in its entirety and is dismissed.

 

 

 

 

 

SGD                            Y. DARKO ASARE

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

SGD             G. SACKEY TORKORNOO (MRS.)

(CHIEF JUSTICE)

 

 

 

SGD                              G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 

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

(JUSTICE OF THE SUPREME COURT)

SGD                       S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 

SGD                         E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

 

 

 

 

 

SGD                      R. ADJEI-FRIMPONG

(JUSTICE OF THE SUPREME COURT)

 

 

 

COUNSEL

 

ELIKPLIM L. AGBEMAVA ESQ. APPEARS IN PERSON FOR THE PLAINTIFF.

GRACE OPPONG (MS.) (PRINCIPAL STATE ATTORNEY) FOR THE DEFENDANT.