[2012]DLSC2685 • May 16, 2012 • Supreme Court •
THE ATTORNEY GENERAL vs. BALKAN ENERGY GHANA LTD, BALKAN ENERGY LLC AND MR. PHILIP DAVID ELDERS
The Government of Ghana sought to urgently rehabilitate and operate a power barge in the Western Region. Balkan Energy LLC, a foreign entity, entered into a Memorandum of Understanding with the Government, and subsequently incorporated Balkan Energy Ghana Limited locally to enter into a Power Purchase Agreement (PPA) with the Government. A dispute arose over alleged misrepresentations regarding operational timelines, leading to arbitration proceedings initiated by Balkan Energy Ghana Limited. The Government challenged the validity of the PPA and its arbitration clause on grounds that it lacked required Parliamentary approval under Article 1815 of the 1992 Constitution.
read moreDR. DATE-BAH JSC: The task of this Court in this case is to interpret the phrase or term “international business or economic transaction to which the Government is a party” as it is used in article 181(5) of the 1992 Constitution. The responsibility to interpret this phrase has arisen as a result of this Court deciding to refer to itself constitutional issues that had arisen in proceedings before the High Court (Commercial Division). The learned High Court judge refused an application from the plaintiff to refer the said constitutional issues to this court. The plaintiff accordingly invoked our supervisory jurisdiction to quash the decision of the learned High Court judge not to refer the issues to this Court. This Court, in a unanimous ruling delivered on 2nd November, 2011, quashed the decision of the High Court judge not to refer the constitutional issues. To avoid a multiplicity of suits and to save time, this Court decided to exercise the powers of the High Court, which ...