UK: Contracting With The Ghanaian Government Or Government Entities – Some Guidance For The International Community From The Supreme Court In Accra


In its recent decision in the case of Felix Klomega v The Attorney General and others, the Supreme Court in Ghana has provided much needed guidance to the international community when looking to contract with the Ghanaian government or government entities.

The facts

The claimant, a citizen and tax payer of Ghana, brought proceedings in the Supreme Court challenging the constitutional validity of a concession agreement and an associated shareholders agreement for the design, construction and, thereafter, operation of the container terminal at the port of Tema, Ghana for 20 years.

The concession was granted to Meridian Port Services Limited (MPS) by the Ghana Ports and Harbours Authority (GPHA).

MPS is a Ghanaian company, being a joint venture between Meridian Port Holdings Limited (MPH) and the GPHA, with MPH being the majority shareholder.

MPH is an English company, being a joint venture between leading container terminal operators APM Terminals and Bolloré Africa Logistics.

The GPHA is a statutory corporation established under the Ghana Ports and Harbours Authority Act, 1986 (PNDCL 160).

The GPHA, MPS and MPH were named as defendants in the proceedings, along with the Attorney General of Ghana.

The issues in the case

The claimant relied on article 181(5) of the 1992 Constitution of Ghana (the Constitution), which requires any "international business or economic transaction" to which the government is a party be authorised by parliament.

The claimant's contention was that the expression "government" included a state entity such as the GPHA and that, as a result, the concession and shareholders' agreements should be declared null and void for want of parliamentary authorisation.

The defendants' principal arguments were that the GPHA could not be included within the definition of government because (i) it had been set up as a separate legal entity from central government under PNDCL 160; (ii) its operations were commercial in nature and did not, therefore, require parliamentary approval; and (iii) it is a government agency as distinct from an organ of government.

If, contrary to the position of the GPHA, MPS and MPH, the GPHA was deemed to be within the definition of government, the court was asked to determine whether the concession agreement and the shareholders' agreement were, in any event, "international business or economic transactions" for the purposes of article 181(5) of the Constitution.

The Supreme Court's decision

On 19 July 2013, the nine Justices of the Supreme Court delivered a unanimous decision dismissing the claimant's action.

In doing so, the court only decided the principal issue as to whether the GPHA came within the meaning of government, and held that:

The cumulative points made by the defendants above amount to an irresistible case that in the context of article 181(5) and the facts of this case, the 2nd defendant [the GPHA] is not to be regarded as coming within the meaning of "Government".

The Supreme Court went on to hold that:

" subject statutory corporations..." with commercial functions to the Parliamentary approval process prescribed in article 181(5) would probably increase the weight of Parliament's responsibilities in this regard to an unsustainable level. Accordingly, it is reasonable to infer that the framers of the 1992 Constitution did not intend such a result.

In the court's view, government should mean, ordinarily, the central government and not operationally autonomous agencies of government, and interpreting that word purposively it should exclude the operations of the GPHA.

The Supreme Court did, however, state that its decision did not lay down an absolute rule. For instance, article 181(5) may still apply on the particular facts of a case if central government was found to have made a particular statutory corporation its alter ego.

As to the "international" nature of the concession and shareholders agreements, the court stated that:

Although these other issues raised by the parties are tantalizingly interesting, we will refrain from commenting on them or deciding them, since that is not necessary for the determination of this case.

Concluding remarks

This is the fifth time the Supreme Court has been asked to interpret article 181(5) of the Constitution.

In the light of this significant body of law, in this last case the court stated that it has laid the foundation for determining the provision's meaning with some predictability.

So, in the future, if there is an issue as to whether article 181(5) applies or not, parties must ask the High Court to decide the point rather requesting an interpretation from the Supreme Court. This would include dealing with issues such as whether a contract is with the "government" and, if so, whether it is an "international business or economic transaction" such that parliamentary approval is required.

When contracting with the Ghanaian government or government entities, it is vital that contracting entities give due consideration and take legal advice as to the possible application of article 181(5). A failure to do so could have significant ramifications.

If the conclusion is that a party is going to be contracting with the "government" and the contract in question is an "international business or economic transaction", parliamentary approval will be required. If so, this requirement will need to be factored into the timeline leading to contract closing.

Samantha Roberts and Peter Cassidy of Reed Smith represented MPH regarding the concession and the Supreme Court proceedings respectively, in conjunction with Ace Annan Ankomah and Kwesi Fynn of Bentsi-Enchill, Letsa & Ankomah, Accra, Ghana.

About the Reed Smith Africa Business Team The Reed Smith Africa Business Team represents companies on transactions throughout the African continent. We combine our global business experience, understanding of African culture, and close relationships with local African firms to offer clients a single-team approach and the highest quality of legal advice across a broad range of areas, including:

  • Capital markets and securities
  • Finance and lending
  • Investigations
  • Joint ventures
  • Litigation and arbitration 
  • Mergers and acquisition
  • Private equity investments
  • Infrastructure projects
  • Project finance
  • Regulatory

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions