KUAH vs. ATTORNEY-GENERAL AND ANOTHER [1980]DLSC1592

Date	1980-05-19
Suit No.
Citation No.	[1980]DLSC1592

EDWARD WIREDU J.

TSATSU TSIKATA FOR THE PLAINTIFF.

JOHN BOATENG STATE ATTORNEY FOR THE DEFENDANTS.

[1980]DLSC1592
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													<main id="main" class="content" style="min-height: 60rem" >KUAH <o:p></o:p>vs. <o:p></o:p>ATTORNEY-GENERAL AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 481<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:
19
MAY 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;
padding:0in 0in 0in 0in">

TSATSU TSIKATA FOR THE PLAINTIFF.<o:p></o:p>

JOHN BOATENG, STATE ATTORNEY FOR THE DEFENDANTS.<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">

EDWARD WIREDU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDWARD WIREDU J.<o:p></o:p>On or
about 26 February 1980 the plaintiff issued out of this court a writ against
the defendants for (a) an injunction restraining the defendants herein from
unlawfully interfering with the plaintiff’s trade or business, and (b) damages
against the defendants herein for unlawful interference with the plaintiff’s
trade as a seaman. The writ filed was accompanied with a twenty-paragraph
statement of claim setting out the facts on which the plaintiff intends to rely
to prove his claim.<o:p></o:p><o:p>&nbsp;</o:p>On 29
February 1980 an appearance was entered on behalf of the defendants by the
Solicitor-General and on 5 March a thirteen paragraph statement of defence was
filed on their behalf in answer to the claim by the plaintiff. On 19 March an
amended statement of defence was filed which reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
defendants will at the hearing date contend by way of preliminary objection
that the plaintiff ‘s action is not properly before the court, in that no
statutory notice was served on the first defendant as enjoined by paragraph 1
(2) of the State Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352).”<o:p></o:p><o:p>&nbsp;</o:p>This
amendment was moved and was granted without objection on 14 April 1980. On that
same day counsel agreed to argue the terms of the amendment as a preliminary
issue.<o:p></o:p><o:p>&nbsp;</o:p>Arguing
in support of the objection, Mr. John Boateng, State Attorney, representing the
Solicitor-General for the defendants, submitted that paragraph 1 (2) of the
State Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352), enjoined the
plaintiff to have given a statutory one month’s notice to the Attorney-General.
Learned state attorney argued that the facts before the court show that the
plaintiff failed to comply with this statutory request. He therefore submitted
that since this statutory requirement, if I understood him well, was a sine qua
non to maintaining the plaintiff’s action, his failure to comply with it
rendered his claim incompetent before the court.<o:p></o:p><o:p>&nbsp;</o:p>Replying
on behalf of the plaintiff, Mr. Tsatsu Tsikata argued that under article 211 of
the Constitution, 1979, all claims against the State (the government) has been
put on equal footing with claims between individual citizens. Learned counsel
argued that under article 211 proceedings against the State did not require the
grant of a fiat or the use of the process known as petitions of right. Learned
counsel referred to clause 2 of article 211 and submitted that it was made
abundantly clear under the sub-clause that an action against the State lay as
of right and that the Constitution has by implication taken away the provisions
of N.L.C.D. 352. He submitted that the provisions of paragraph 1 (1) of
N.L.C.D. 352 conflict with the plain language of article 211 (1) and (2) and
the latter being the fundamental law of the land, the provisions of<o:p></o:p>N.L.C.D.
352 to that extent ought to give way to it. He cited Republic v. Lands
Commission; Ex parte Akainyah [1975] 2 G.L.R. 487 and Kodi v. Accra-Tema City
Council [1976] 2 G.L.R. 348 to support his contention.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel argued in the alternative that if the preliminary objection was upheld
then the action ought to be struck out only in respect of the first defendant,
the Attorney-General. He argued that the action was against th</main>