The Attorney-General’s Department says there is no possible breach of contract on the part of government with regards to its contractual obligation to the Ghana Community Network Limited (GCNet), in the government’s bid to implement a National Single Window, in the country.
In response to a letter by GCNet dated June 11, 2015 addressed to the Minister of Trade and Industry on the possible breach of the GCNet service contract, Dr. Dominic Akurintinga Ayine, Deputy Attorney General and Deputy Minister for Justice in a statement issued in Accra yesterday, said there was no possibility of breach of agreement.
GCNet’s letter to the Minister of Trade claimed that the company had already been mandated to implement a Single Window in Ghana and that the government would be in possible breach of its contractual obligation to GCNet in the bid to implement a National Single Window other than that which GCNet was already implementing, pursuant to its contract with the government.
But in its response the Attorney General’s Department said, “We have come to this conclusion for the following reasons. First, the notice that you served on the government specifically relates to the Single Window. Therefore, it is important to ascertain the scope and meaning of the provision containing that expression and to determine the extent to which the implementation of the National Single Window would constitute a breach of the aforementioned Agreements”.
The statement said the ‘Single Window’ was introduced for the first time in the Supplemental Agreement in relation to the TradeNet regime.
The supplemental agreement, it said “does not however define the term ‘Single Window’. But it is clear from a reading of the Agreement that the term ‘Single Window’ is used in the context of the deployment of the TradeNet and its implementation is therefore, inextricably tied to the TradeNet”.
“The language of article 4.2 of the Supplemental Agreement is revealing in this respect. It refers in 4.2.2 to “the Single Window concept that is being implemented as an integral part of the TradeNet” and in 4.2.4 to the obligation of GCNet to “arrange the purchase, financing and installation of the necessary hardware and application software to ensure that implementation of the Single Window concept is expeditiously deployed under the TradeNet,” it said.
The statement said within the commercial context of the agreement as a whole, the Single Window concept as used in the Supplemental Agreement was not meant to be a substitute for the TradeNet.
The statement argued that linguistically, something meant to be an integral part of another thing, could not be said to be a substitute for that which was meant to be a part of or under which it was designed to be deployed.
It said it would thus, be commercially absurd to claim that the Single Window concept, as used in the Supplemental Agreement, was meant to supplant, override or vary the TradeNet regime.
In consequence, the statement said the Single Window concept only made sense as a refinement of the TradeNet regime, and its implementation made commercial sense only within the context of the services to be performed as part of the TradeNet.
The statement said if the parties had intended that the Single Window be wider in scope than the TradeNet as defined in the Original Agreement, they would have stated so explicitly.
It said the position taken by GCNet, was commercially absurd in the sense that, taken to its logical conclusion, its effect was that the government had granted GCNet an unfettered contractual discretion to do whatever it takes to implement an undefined contractual undertaking.
“If GCNet claims that the Single Window is being implemented, then it must be able to point to specific contractual terms and conditions within the four corners of the Supplemental Agreement, read in tandem with the Original Agreement, relating to the implementation of the Single Window. If not, then it would be practically and commercially absurd for the Government, as a party to this Agreement, to basically allow itself to be at the whim of GCNet as far as regards the so-called Single Window implementation. Such a contract would be void for uncertainty,” it said.
The statement said the government had never expressed an intention to grant GCNet exclusive rights to take over all the activities being undertaken by service providers within the international trade sector, such as the Destination Inspection Companies.
“Given this policy background, it could not have been the intention of the government to give GCNet an exclusive right to undertake the implementation of an open-ended Single Window concept that may comprehend the activities and contractual obligations of these other operators, such as customs valuation, classification and transport and logistics. In consequence, the position of GCNet in relation to the exclusive right to provide such services as part of its Single Window obligation is legally untenable,” the statement said.
“Finally, it is important to state that the National Single Window programme being undertaken by the government is definitively wider in scope and content than that which GCNet claims to be implementing as an integral part of the TradeNet,” the statement said.
The statement said “in our review of the said agreements, we have noted that they qualify as international economic or business transactions within the meaning of article 181(5) of the Constitution.”
“As you are very much aware, the Supreme Court has consistently held such Agreements as unconstitutional and, therefore, null and void for want of parliamentary approval. We did not sight any parliamentary resolution approving these Agreements and have therefore, advised government to consider submitting the agreements to Parliament for its approval,” the statement concluded.
By Times Reporter