A-G FLOORS BALKAN ENERGY, AS SUPREME COURT STAMPS NULL &VOID ON PPA

By Felix Engsalige Nyaaba

The Supreme Court yesterday ruled that the Power Purchase Agreement (PPA) signed between the Government of Ghana and the Balkan Energy Ghana and Balkan International PLC,in  July, 2007 for the rehabilitation of the Osagyefo Barge , is  illegal as it did not passed through Ghana’s parliament for approval.\

After several argument at the Supreme Court, the nine member panel of judges ld by Mr. Justice Atuguba , by a unanimous  decision ruled that the transaction was an international one as such it should have passed through parliament for approval and since it did not pass the entire agreement is null and void.

According to the Supreme Court, the management, the Directors and the head quarters of the defendant, the Balkan Energy Company is in the USA and that, all the element to make a company an international was not in doubt.

Reading the judgment,  Professor Date Baah,said to avoid future  legal tussles on issues of international transaction the Ghana parliament need to enact a bill that specifically define what an international transaction is , stressing that Article 181(5) of the 1992 constitution was general in the explanation as to what is an international transaction.

The Supreme Court also ordered the Commercial Court to dispose of the case by adopting the Supreme Court ruling as its verdict on the matter as null and void.

The other members of the panel that sat on the case were, Justice Professor S.K. Date-Baah, Justice Sophia Adinyira, Justice Julius Ansah, Justice Anin Yeboah, Justice Sulleman Gbadegbey and Justice Vida Akoto Bamfo.

 The Supreme Court at the early part of the case threw out an application filed by the Zenith Bank Ghana Limited seeking leave of the court to be party in the suit.

The Bank was rather ordered to file its “Amicus–Curaes”, that is to file the intended document that it wanted to file to the court.

The Zenith Bank contention, according to its legal counsel, Nana Ato Dadzie was that it was the Bank that guaranteed an overdraft facility of $2.5 million to the Balkan Energy for the power purchasing Agreement project signed between the Company and the Government of Ghana.

The Supreme Court had also on an earlier stage in the case ruled on a preliminary objection by counsel for Balkan Energy, Mr. Ace Ankomah that the Court has no jurisdiction to hear the matter.

The Supreme Court in that ruling held that it has supervisory jurisdiction to hear the matter since it borders on constitutional matter.

Dr. Benjamin Kunbour, the Attorney General and Minister of Justice , after court   ruling told the Enquirer that, the Supreme Court has help build the laws of Ghana and that no business  entity could come into the country in the name of investment without going through the legal process.

He said, per the Supreme Court verdict on the matter, the Attorney General would advise the government on the next step to take on the entire Power Purchasing Agreement as well as the Memorandum of Understanding (MOU) signed between the government of Ghana and the Balkan Energy in July 2007.

According to the Minister of Justice and the Attorney General, as the Supreme Court stated, the Attorney General would also take steps to draft a bill through the parliament of Ghana to help strengthen the international business transaction issues in the country.