ZENITH BANK GHANA LTD vs. BALKAN ENERGY GHANA LTD REALTY ADVISORS INC. GOVERNMENT OF GHANA – GARNISHEE/JUDGEMENT DEBTOR GHANA REVENUE AUTHORITY – CLAIMANT NATIONAL PETROLEUM AUTHORITY

ZENITH BANK GHANA LTD vs. BALKAN ENERGY GHANA LTD REALTY ADVISORS INC. GOVERNMEN... [2019]DLHC7561

Date	2019-07-31
Suit No.	SUIT NO.BFS/217/2013
Citation No.	[2019]DLHC7561

JEROME NOBLE-NKRUMAH JUSTICE OF THE HIGH COURT

GRACE EWOOL [PRINCIPAL STATE ATTORNEY] WITH AURIOL ASARE

BOATENG FOR THE ATTORNEY GENERAL

FREEMEN SARBAH FOR GHANA REVENUE AUTHORITY

AMARKAI AMATEIFIO FOR THE PLAINTIFF APPLICANT

[2019]DLHC7561
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													<main id="main" class="content" style="min-height: 60rem" >ZENITH BANK GHANA LTD<o:p></o:p>vs.<o:p></o:p>BALKAN ENERGY
GHANA LTD<o:p></o:p>REALTY
ADVISORS INC.<o:p></o:p>GOVERNMENT OF
GHANA – GARNISHEE/JUDGEMENT DEBTOR<o:p></o:p>GHANA REVENUE
AUTHORITY – CLAIMANT<o:p></o:p>NATIONAL
PETROLEUM AUTHORITY – CLAIMANT<o:p></o:p>[HIGH COURT (COMMERRCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>COUNSEL:
<o:p></o:p>GRACE
EWOOL [PRINCIPAL STATE ATTORNEY] WITH AURIOL ASARE BOATENG FOR THE ATTORNEY
GENERAL<o:p></o:p>FREEMEN
SARBAH FOR GHANA REVENUE AUTHORITY <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

AMARKAI
AMATEIFIO FOR THE PLAINTIFF APPLICANT <o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

JEROME
NOBLE-NKRUMAH JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

RULING<o:p></o:p>

</div>Upon the grant of an Order for
Garnishee Nisi against the Bank of Ghana to show cause why funds held by the
said named bank in specified accounts of the Ghana Revenue Authority and
National Petroleum Authority, on behalf of the Government of Ghana, should not
be released in payment and satisfaction of the government’s debt owed the Applicant,
the present claimants prayed this court to be heard. <o:p></o:p>National Petroleum Authority [NPA] the
first claimant in opposing this application, has argued that the Applicant is
not entitled to garnishee the accounts of the NPA to satisfy a debt owed the Applicant
by the defendant judgment debtor. Referring to the garnishee order dated 26/7/17
which ended with an order absolute, the NPA has urged on this court that matters
relating thereto against the Government of Ghana as central government cannot
be used to Garnishee the account of the NPA, as it is a creature of statute
separate and distinct in character from the government. Referring to the
establishment Statute of the NPA to buttress his point counsel for the NPA
argues for example that it is a body corporate with perpetual succession, and
has the capacity to sue and be sued, to acquire and hold movable and immovable property.
Basically counsel says the law has vested in the NPA full legal personality to
carry out its functions. Likening the NPA to institutions like the Ghana Ports
and Harbors Authority and the Ghana National Petroleum Corporation, counsel has
argued further that the courts have held that even where the Government of
Ghana provides letters of comfort and such entities are made subject to general
directions by sector ministers, they do not form part of government machinery.<o:p></o:p>Reference is further made to Article
176 of the 1992 constitution, counsel argues that the account in issue relates
to monies paid in relation to the Energy Sector Levies Act 2015 Act 899 and
that this kind of money is that which is contemplated in&nbsp; Article 176 (2) of the 1992 constitution.<o:p></o:p>Counsel next touches on the assignment
of the award to Balkan Energy UK and urges on this court that from the date of
the assignment&nbsp; the Government of Ghana
did not owe the defendant judgement debtor and therefore the Applicant cannot&nbsp; seek to enforce its judgement against
defendant judgment debtor as regards the award.<o:p></o:p>Counsel next refers to a judgment in favor
of the Government of Ghana against the defendant judgement debtor over and
above the award. Relying on an argument of a set off against the Applicant,
counsel submits that there is a clear set off of an amount of about
€73,000,000.00 in favor of the Government of Ghana <o:p></o:p>Lastly counsel has argued that the
foundation has not been laid for the enforcement of this award as there has
been no demonstration that the award has &nbsp;been registered referring to section 57 of Act
798, The Alternative Dispute&nbsp; Resolution
Act.<o:p></o:p>&nbsp;As a court of law and equity, counsel points
out the Government of Ghana has been forced to pay Balkan Energy UK the
Arbitration Award sum plus interest, it will be unjust in&nbsp; a court of equity that, the Government of
Ghana should be forced to pay twice on the same award. I will limit myself briefly
to these arguments by the NPA.<o:p></o:p>The Ghana Revenue authority [GRA] the
second claimant associates itself with the forgoing but adds that the account
in issue is for operations and sa</main>