Daniel Asiedu, Zenith Bank MD
THE SUPREME COURT yesterday dismissed a motion by Zenith Bank seeking to be joined as a party to a case between the Attorney-General and Balkan Energy which is pending at the court.
Zenith Bank, led by its counsel, Nana Ato Dadzie, yesterday moved the motion, arguing that they had an interest in the case because they granted Balkan Energy a 25million dollar overdraft facility to be used as a guarantee for the Power Purchase Agreement it signed with government for the Osagyefo Badge.
According to Nana Ato Dadzie, they had certain views they would like to bring on board for the determination of the case but the Attorney-General, Dr Benjamin Kunbuor, opposed to this motion.
The AG argued that the action by Zenith Bank was an abuse of the court procedure and that the motion was only to delay the matter.
The seven-member panel presided over by Justice William Atuguba unanimously dismissed the motion of Zenith Bank but granted them amicus curiae, thus the opportunity to act as a friend of the court to bring on board what they have. The court adjourned the matter to March 20.
Before the motion was moved, Ace Ankomah, counsel for Balkan Energy, also moved a motion for an extension of time to file his argument and this was granted by the court, which asked him to do that on or before March 5.
The other panel members are Justices Date-Bah, Julius-Ansah, Sophia Adinyera, Anin-Yeboah, Sule Gbedegbe and Vida Akoto Bamfo.
It would be recalled that the Supreme Court stayed proceedings in a case at an Accra High Court involving Balkan Energy Ghana Limited and the Government of Ghana after it ruled that there were certain issues raised in the case which needed interpretation.
The Supreme Court had ruled that the High Court usurped its jurisdiction by not referring to it certain constitutional matters which needed interpretation as requested by the state.
It therefore ordered the Supreme Court registrar to place the case docket before the court so it would be empanelled for the determination of those matters.
The state, led by the Minister for Justice and Attorney General, alleged that Balkan Energy Ghana Limited, owned 100 percent by Balkan Energy Company LLC, a company based in USA, in 2007 entered into a Power Purchase Agreement with Government of Ghana for the Osagyefo Badge.
However, although government was part of the deal, the agreement did not pass through parliament for approval.
So when the Mills administration came into office, it observed the anomaly and raised issues about it but the company took government to an Arbitration Tribunal outside Ghana.
The state on the other hand decided to drag Balkan Energy Ghana Limited, its mother company Balkan Energy Company and one Phillip David Elders to the High Court to seek certain reliefs.
The Attorney-General was seeking an injunction restraining the company, their agents, affiliates, subsidiaries from instituting or pursuing arbitration proceedings or any other proceedings against government outside the jurisdiction of Ghana.
The AG, in the course of proceedings, observed that some portions of their reliefs were constitutional matters which needed to be interpreted by the Supreme Court.
Although the state moved an application for these aspects to be sent to the Supreme Court, the High Court refused to do so. It therefore appealed against the High Court ruling, which went its favour.
The Supreme Court is to determine whether or not the agreement between government and Balkan Energy Limited and the arbitration provisions contained in the said agreement constituted an international business transaction under article 181 of the constitution.
The AG is urging the Supreme Court to give a true and proper interpretation of article 181(5) of the constitution to the effect that the words “international business or economic transaction to which the Government is a party” applies to a business transaction between the government and a company incorporated in Ghana, owned wholly by foreigners and capable of enjoying the status of a strategic foreign investor under the Ghana Investment Promotion Center Act, 1994(Act 479)”.
It is the submission of the AG that an interpretation which permits such entity to escape the mandatory requirements of article 181(5) by Parliament would be inconsistent with the letter and spirit of Article 181.
The AG observed that without this interpretation, it would lead to the absurd result that Ghanaians who entered into loan transactions with government under the same article 181 would have to comply with having their agreements laid before and approved by Parliament, but a wholly foreign owned with all the characteristics of an international business will escape that requirement.
“It is our submission that the mischief that article 181 sought to cure is to ensure that both Ghanaians and foreigners who enter into business or economic transactions with government do not escape the requirement of parliament approval to promote probity and accountability,” the AG noted.
By Mary Anane
