PASSER vs. ATTORNEY-GENERAL [1971]DLHC2144

Date	1971-03-26
Suit No.
Citation No.	[1971]DLHC2144

ABBAN J.

J. B. QUASHIE-IDUN (J. QUASHIE-IDUN WITH HIM) FOR THE PLAINTIFF.

DR. S. K. B. ASANTE SOLICITOR-GENERAL (N. M. C. DODOO PRINCIPAL STATE ATTORNEY WITH HIM)

FOR THE DEFENDANT.

[1971]DLHC2144
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													<main id="main" class="content" style="min-height: 60rem" >PASSER<o:p></o:p>&nbsp;vs. <o:p></o:p>ATTORNEY-GENERAL <o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 439<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 MARCH 1971.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. B. QUASHIE-IDUN (J. QUASHIE-IDUN WITH HIM) FOR
THE PLAINTIFF.<o:p></o:p>

DR. S. K. B. ASANTE, SOLICITOR-GENERAL (N. M. C.
DODOO, PRINCIPAL STATE ATTORNEY, WITH HIM), FOR THE DEFENDANT. <o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ABBAN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.<o:p></o:p>When the
plaintiff was about to open his case, the learned Solicitor-General, appearing
for the defendant raised two interesting preliminary objections. He contended
that the proceedings herein, being proceedings in rem, are caught by section 19
(1) of the State Proceedings Act, 1961 (Act 51), which bars such proceedings
against the Republic. His second objection was that even if these proceedings
are not barred by section 19 (1) of Act 51, and therefore the court can hear
the case, the reliefs being sought by the plaintiff in this action are reliefs
which the court has no power to grant because the court is precluded from
giving such remedies by section 13 (1) (a) and (b) of the said State
Proceedings Act, 1961 (Act 51). Counsel for the plaintiff contended otherwise.<o:p></o:p><o:p>&nbsp;</o:p>From the
arguments of counsel, two issues have emerged for consideration. First, whether
the proceedings herein are proceedings in rem and if they are, whether this
court has jurisdiction to entertain the action in view of section 19 (1) of the
State Proceedings Act, 1961 (Act 51). Secondly, whether the court has power to
grant an order for specific performance of a contract or for the delivery of
property as being claimed by the plaintiff, having regard to section 13 (1) of
Act 51.<o:p></o:p><o:p>&nbsp;</o:p>For the
sake of convenience, I will deal first with the objection raised under section
13 (1) of Act 51. The plaintiff is claiming three reliefs, namely, damages for
breach of contract, the delivery of the eight trawlers or £G400,000 being the
value of the trawlers and interest on the said amount. On the true construction
of section 13 (1) (a) and (b), I agree with the learned Solicitor-General that
this court has no power to make an order for the delivery of the vessels or for
specific performance of the contract. So far as the trawlers are concerned, the
best that the plaintiff can hope for is a bare declaration of his right in
respect of those trawlers and probably damages, if he succeeds in proving
breach of contract. But the vessels cannot be ordered to be delivered to him.
However, since a declaratory judgment can be given in lieu of an order for
delivery of the trawlers, and since the claim for damages is a relief which is
not barred by section 13 (1) (a) and (b) of Act 51 I am of the opinion that the
action itself is not open to objection.<o:p></o:p><o:p>&nbsp;</o:p>I now
come to the objection raised under section 19 (1) of Act 51, that is, whether
the present proceedings are proceedings in rem. Normally, proceedings in rem
are those in which the action is directed against the res, such as a ship; and
looking at the form and the procedure adopted in this particular case, I am not
convinced that the proceedings herein are proceedings in rem. From the way this
present action was begun, that is, by ordinary writ, and the fact that the writ
was not directed against the corpus of the trawlers, I am inclined to agree
with counsel for the plaintiff that these proceedings are not proceedings in
rem. If an action is likely to result in a judgment in rem, it does not
necessarily follow that the proceedings in connection with that action are
proceedings in rem. For example, “a grant of probate or administration, and a
decree in a matrimonial suit are judgments in rem, directly determining the
status of property or persons, though the proceedings in which they are given
are in form proceedings in personam.” See Halsbury’s Laws of England (3rd ed.),
Vol. 1, para. 72 at p. 36 . The action herein arose out of a contract with the
Republic and it is maintainable under section 2 (a) of the State Proceedings
Act, 1961. I am therefore of the view that the proceedings herein are
proceedings in personam. The fact that a declaration of a sort is likely to be
made after the trial, and which declaration is likely to be classified as a
judgment in rem, cannot by itself convert the proceedings which are clearly in
personam to that of proceedings in rem. The objections are therefore overruled.
Case to be heard on its merits.<o:p></o:p>