ASIEDU-ADDO AND ANOTHER vs. COMPTROLLER OF CUSTOMS AND EXCISE AND OTHERS [1980]DLHC1562

Date	1980-08-06
Suit No.
Citation No.	[1980]DLHC1562

CECILIA KORANTENG-ADDOW J.

AMOAKO-GLOVER FOR THE PLAINTIFFS.

JOHN BOATENG FOR THE FIRST DEFENDANT

[1980]DLHC1562
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													<main id="main" class="content" style="min-height: 60rem" >ASIEDU-ADDO AND ANOTHER <o:p></o:p>vs.<o:p></o:p>&nbsp;COMPTROLLER OF
CUSTOMS AND EXCISE AND OTHERS<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 505<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:
6
AUGUST 1980<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;
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AMOAKO-GLOVER FOR THE PLAINTIFFS.<o:p></o:p>

JOHN BOATENG FOR THE FIRST 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">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>This is a
claim for the recovery of goods which have been seized by the first defendant
and delivered to the third defendant for sale. According to the statement of
claim, the plaintiffs entered into a contract of carriage with the second
defendant to convey the goods from Rome, Italy to Abidjan, and that while they
were in transit, they were seized at the Kotoka International Airport. The
claim therefore is for recovery of the goods; perpetual injunction to restrain
the first and third defendants and their privies from disposing of the goods;
damages for wrongful seizure and detention, and damages against the second
defendant for breach of contract of carriage. The writ was issued on 25 May
1980. The statement of claim was filed on 4 June 1980. The second and third
defendants entered appearance through their respective solicitors, and the
statement of defence was filed on behalf of the third defendant on 2 July 1980.
On 11 July 1980 the plaintiffs filed a motion for judgment against all the
defendants in default of pleading. On 14 July 1980 at 2 p.m. an appearance
under protest was entered on behalf of the first defendant. At 3.30 p.m. the
same day an affidavit in opposition was filed by the first defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
motion for judgment came on for hearing on 25 July 1980 but it was adjourned
for hearing on 28 July. Counsel for the first defendant decided to submit
argument as to whether or not the first defendant is a proper party before the
court and whether the plaintiff ought to have complied with the State Proceedings
Act (Amendment) Decree, 1969 (N.L.C.D. 352), and served notice on the
Attorney-General. In the affidavit in opposition sworn to by a law clerk on the
authority of the Solicitor-General, it was deposed that the first defendant is
a department of the Republic of Ghana and that it has no legal personality of
its own. It was further deposed that the action ought to have been brought
against the Attorney-General; that being the case, the Attorney-General ought
to have been served with one month’s notice before the action was commenced, in
compliance with N.L.C.D. 352. Mr. John Boateng, the learned State Attorney,
argued along these lines, and submitted that if judgment were entered against
the first defendant, it would be satisfied from public funds so the claim is
one which ought to have been brought against the Attorney-General and since no
notice was given, the claim is incompetent and cannot be maintained so it
should be struck out.<o:p></o:p>Mr.
Amoako-Glover, counsel for the plaintiffs on the other hand, argued that
section 4 of the Customs Ordinance, Cap. 167 (1951 Rev.), makes the comptroller
suable, and he referred to cases in the law reports in which the Comptroller of
Customs was a party. He referred particularly to Kassar v. Comptroller of
Customs [1963] 1 G.L.R. 109, S.C. He further submitted that N.L.C.D. 352 makes
it permissive to bring an action against the Republic. He said article 211 of
the Constitution, 1979, also gives a discretion to a plaintiff to bring the
action against the Republic but if the plaintiff chooses he may proceed
directly against the State department if that can be made a suitable defendant.
In this case where the comptroller is a public officer whose salary is above
¢6,000, Mr. Amoako-Glover submitted that he may be sued personally, and that in
such a case, he submitted, no notice is required and that notice is required
only if one is proceeding against the Attorney-General or the Republic. He
relied on Quainoo v. Attorney-General [1976] 1 G.L.R, 106. While this matter
was pending for ruling, Mr. Amoako-Glover also drew my attention to the ruling
of Edward Wiredu J. (as he then was) in Kuah v. Attorney-General [1981] G.L.R.
481.<o:p></o:p><o:p>&nbsp;</o:p>The
issues involved in this ruling are whether or not the Comptroller of Customs is
a proper party before the court, or whether the action should have been brought
against the Attorney-General; and whether or not notice should have been served
on the Attorney-General before the action was commenced.<o:p></o:p>Section 1
of the State Proceedings Act, 1961 (Act 51), as amended by N.L.C.D. 352
provides:<o:p></o:p>“1. (1)
Subject to the provisions of this Act, an action may be brought against the
Republic without the fiat of the Attorney-General if the cause of such action
arises on or after the 1st day of May, 1969. (2) No action shall be commenced
against the Republic until the expiration of one month after written notice of
intention to commence the action has been served by the claimant or by his
attorney or agent:<o:p></o:p>