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Lonrho Opposes MPs Application   
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The Interested Party in the case in which five Minority Members of Parliament (MPs) are seeking judicial review of clause 7 of the agreement entered between the Government of Ghana (GOG) and Lonrho over the construction of the $600million Atuabo Free Port has opposed the grounds for the application by the plaintiffs.

The Interested party (Lonrho), moving its case at the Court sitting last Friday, maintained that the aforementioned clause which the applicants (MPs) are questioning its legality was valid and consistent with Ghanaian laws and functions of Ghana Ports and Harbours (GPHA) Act 160.

Counsel for Lonrho, Mr. D.K. Letsa, told the Court that the clause did not restrict GPHA in the performance of it functions under Act 160, stressing that the project in question did not fall under GPHA mandate.

According to him, the project was declared as a Free port and, therefore, governed by Freezone Act and under the authority of Freezone. He added that Parliament’s approval of the clause did not constitute an illegality as maintained by the applicants in their application.

It would be recalled that the five minority MPs, Kweku Kwarteng, MP for Obuasi West, Hon. Kobina Okyere Darko, MP for Takoradi, Hon. Joseph Cudjoe, MP for Effia constituency and two others, filed a writ at the court for a review of the clause 7 of the agreement signed between GoG and Lonrho, for the construction of the Atuabo Free Port.

The Court, presided over by Justice Ababio, has thus fixed the 24th of October to deliver its ruling in the landmark case.

But Counsel Letsa submitted that since the agreement was moved in Parliament in accordance with powers granted it by the constitution, the High Court had no jurisdiction to interfere with Parliamentary approval of the clause, in accordance with the laws of Ghana.

“Parliament approval of the clause does not constitute an illegality and respectively invites the Court to dismiss the application,” he said. He argued that Parliament acted constitutionally and the Court did not have jurisdiction to investigate an approval given by Parliament, much more declare it unlawful or void.

Counsel Letsa explained that the basis of the 1992 constitution was based on separation of powers between various organs and each derived it powers from the constitution. As a result, none can purport to supervise the exercise of constitutionally endowed functions so long as it has been exercised constitutionally.

For this reason, Parliament had acted within the confines of the constitution and the law and, therefore, no jurisdiction for the Court to hear the matter.

To Counsel, if the sitting Judge assume jurisdiction over the case, that would be unconstitutional. He cited the Supreme Court Case between the New Patriotic Party Verses the Attorney General as a reference case to back his submission and argued that the Court could not sit on the case before it.

He added that in respecting the supremacy of the constitution, the only time the Court may interfere with the performance of the functions of another branch of government was when the performance was unconstitutional.

Responding to applicants arguments that decisions of Parliament could be called into question, Interested Party’s Counsel disagreed.

Citing the Supreme Court case between Mensah verses Attorney, he argued that if the decision fell within the constitutional mandate of parliament, it could not be called into question. On the other hand, the decision could be called into question if it was ultra-vires.

Maintaining that the Court has no jurisdiction to sit on the case, Counsel argued that unless the applicants were able to prove that Parliament in ratifying the agreement breached constitutional provision including its own Standing Orders in the course of approving the clause 7 of the agreement for which it was the subject matter before the High Court.

In absence of that, Counsel submitted that the Court could not review what Parliament does and that the applications should be thrown out.

Counsel Letsa, however, told the sitting Court Judge that it was trite in application for judicial review that the applicant must satisfy sufficient interest and the grounds he was relying on in his affidavit.

He added that the basis of applicants’ affidavit was the alleged illegality in clause 7 as contained in the agreement. Interestingly, the applicants had not proved that burden as contained in their affidavit.

Continuing, Counsel opposed the argument by the applicants that per GPHA Act 5, all Ports fell under the latter, describing the stance as selective reading on the part of the applicants.

Mr. Letsa told the Court that it was interesting that the applicants had not made a single mention of the Freezone Act, though the Respondents in the case (Attorney General) and the Interested Party have linked the creation of the Atuabo Port to the Freezone Act.
Source: The Chronicle

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