Oxymoronic Legalism in the Ghanaian Supreme Court? Case Comment on Attorney-General V Faroe Atlantic Co Ltd.

Richard Obeng Mensah  ORCID iD

Issue: Vol.2  No.10  October 2021  Article 1 pp. 130-138
DOI : https://doi.org/10.38159/ehass.20212101  |   Published online 20th October, 2021.
© 2021 The Author(s). This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).


In 2005, the Supreme Court of Ghana in Attorney-General v Faroe Atlantic Co Ltd rendered its decision on the interpretation of Article 181(5) of the 1992 Constitution. The Court’s decision influenced its subsequent decisions in 2011 and 2012 on the scope and application of Article 181(5). This Case Comment reveals that the Court’s interpretation in relation to the PPA in question was oxymoronic in that it simultaneously held the PPA as both valid and void. The author argues that the Court would have rendered a clearer and fairer decision if it had wholly interpreted Article 181. Its partial interpretation, needless bureaucratic judicial process, and the Government’s lack of due diligence are disincentives to private investment in Ghana’s power sector.

Keywords: Ghana, PPA, investment dispute, interpretation, illegal contract, power crisis, power sector investment.

1992 Constitution (Ghana) (1992).

Andrew, N.H. ‘Case and Comment: Restitution and Void Contracts: The Unmeritorious Defendant Must Pay’. Cambridge LJ 49, no. 1 (n.d.): 15.

Attorney-General v Balkan Energy Ghana Ltd & Others, No. No J6/1/2012 (Supreme Court 16 May 2012).

Attorney-General v Faroe Atlantic Co Ltd, No. Appeal No J4/22/2004 (Supreme Court 26 January 2005).

Chitty, Joseph, and Beale H.G., eds. Chitty on Contracts. Thirty-Second edition. The Common Law Library. London: Sweet & Maxwell : Thomson Reuters, 2015.

Communities Economic Developement Fund v Canadian Pickles Corporation (SCR 1991).

Dambudzo Muzenda. ‘Increasing Private Investment in African Energy Infrastructure’.NEPAD-OECD Africa Investment Initiative, 11 November 2011, accessed 15 February 2021.http://www.oecd.org/investment/investmentfordevelopment/43966848.pdf.

Edjekumhene, Ishmael, and Bawa Amadu Martin, Brew-Hammond Abeeku, ‘Power Sector Reform in Ghana: The Untold Story’. Kumasi Institute of Technology and Environment (KITE), January 2001. http://www.wri.org/sites/default/files/powerpolitics_ghana.pdf.

Garner, Bryan A. and Henry Campbell Black, eds. Black’s Law Dictionary. 8th ed. St. Paul, MN: Thomson/ West, 2004.

Huntley, John A. K., ed. Contract: Cases and Materials. Edinburgh: Green / Sweet & Maxwell, 1995.

International Monetary Fund. ‘Regional Economic Outlook: Sub-Saharan Africa’. World Bank, 2008.

International Energy Agency (IEA). ‘Africa Energy Outlook: A Focus on Energy Prospects in Sub-Saharan Africa’. OECD/IEA, 2014.

Kapika, Joseph, and Eberhard, Anton. Power-Sector Reform and Regulation in Africa: Lessons from Kenya,Tanzania, Uganda, Zambia, Namibia and Ghana. Cape Town: HSRC Press, 2013.

Kwakwa, Paul Adjei. ‘Energy-Growth Nexus and Energy Demand in Ghana: A Review of Empirical Studies’. Applied Research Journal 1 (2014): 28–38.

Ministry of Energy (Ghana). ‘Energy Sector Strategy and Development Plan 2010’, February 2010.

Republic v High Court (Commercial Division), Accra; Ex Parte Attorney-General (Balkan Energy Ghana Ltd & Others Interested Parties), No. Civil Motion J5/34/2011 (Supreme Court 2 November 2011).

Saunders, John B. Words and Phrases Legally Defined. Vol. Volume 1 A-C. Butterworth & Co. (Publishers) Ltd, 1969.

Schoeman, Louis. ‘Top 10 Countries That Have Experienced and Continue to Experienced Crippling Load Shedding’. Power Plant, 15 May 2015. www.powerplanet.co.za/blog/top-10-countries-that-have-experienced-and-continue-to-experience-crippling-load-shedding.

‘Strategic National Energy Plan 2006-2020’. Main Report. Energy Commission (Ghana), July 2006.

Swan, John. ‘The “Void” Contract; Ultra Vires and Illegality: The Communities Economic Development Fund v Canadian Pickles Corporation and Maxwell (Commentary)’. Can Bus LJ 21 (1993, 1992).

Virgo Graham. ‘Case and Comment: Restitution of Void Loans’. Cambridge LJ 69 (2010).

Virgo, Graham. The Principles of the Law of Restitution. 2nd ed. Oxford, New York: Oxford University Press, 2006.

Richard Obeng Mensah is an assistant lecturer at the Private Law Department, Kwame Nkrumah University of Science and Technology, Kumasi – Ghana; where he teaches Intellectual Property Law, Comparative Law, and Ghana Legal System & Method. His research interests include energy security, climate change, human rights, intellectual property rights, comparative law, and corruption and good governance. He has published in these areas among others. His ongoing doctoral research, at the Faculty of Law, KNUST, focuses on the role of the law in the use of clean development mechanism to promote sustainable investment in clean energy in Ghana. Richard holds a Bachelor of Laws (LLB) degree from KNUST, Qualifying Certificate in Law (QCL/BL) from the Ghana School of Law, and a Master of Laws (LLM) degree in Energy Law from the University of Aberdeen, Scotland, United Kingdom. He is a private legal practitioner and a member of the Ghana Bar Association and Advocates Africa/International.

Mensah R.O. “Oxymoronic Legalism in the Ghanaian Supreme Court? Case Comment on Attorney-General V Faroe Atlantic Co Ltd.E-Journal of Humanities, Arts and Social Sciences 2, no.10 (2021): 130-138 https://doi.org/10.38159/ehass.20212101

© 2021 The Author(s). Published and Maintained by Noyam Publishers. This is an open access article under the CCBY license (http://creativecommons.org/licenses/by/4.0/).