REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE ATTORNEY-GENERAL (DELTA FOODS LTD., INTERESTED PARTY) [1999]DLSC463

REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE ATTORNEY-GENERAL (DELTA FOODS LTD., INT... [1999]DLSC463

Date	1999-03-03
Suit No.
Citation No.	[1999]DLSC463

BAMFORD-ADDO JSC

AMPIAH JSC

ACQUAH JSC

ATUGUBA JSC

AKUFFO JSC

EA ADDO SOLICITOR-GENERAL (WITH HIM G K AVAH CHIEF STATE ATTORNEY AND S Y ANIM CHIEF STATE ATTORNEY) FOR THE ATTORNEY-GENERAL .

PETER A ADJETEY (WITH HIM WILLIAM ADDO) FOR THE INTERESTED PARTY.

[1999]DLSC463
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">REPUBLIC<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">HIGH COURT, ACCRA; EX PARTE ATTORNEY-GENERAL (DELTA FOODS LTD.,
INTERESTED PARTY)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 255<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 3 MARCH
1999<o:p></o:p>

</div>COUNSEL:<o:p></o:p>EA ADDO, SOLICITOR-GENERAL (WITH HIM G K AVAH, CHIEF STATE
ATTORNEY, AND S Y ANIM, CHIEF STATE ATTORNEY) FOR THE ATTORNEY-GENERAL .<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">

PETER A ADJETEY (WITH HIM
WILLIAM ADDO) FOR THE INTERESTED PARTY. <o:p></o:p>

BAMFORD-ADDO, AMPIAH, ACQUAH,
ATUGUBA AND AKUFFO JJSC<o:p></o:p>

</div>JUDGMENT OF JOYCE BAMFORD-ADDO JSC.<o:p></o:p>I have been privileged to read in advance the able ruling of my
brother Acquah JSC wherein he has fully set out the facts and correctly
considered the arguments and submission by both parties to this suit. I
entirely agree with his reasoning and conclusions so there is really no need
for me to repeat them as well. The main issue here is that instead of putting
down the Attorney-General as the defendant in the suit in the High Court, the
Minister for Food and Agriculture was mistakenly set down. This mistake was not
raised at the High Court, which court could have corrected the said error under
Order 5, r 6(1) and (2) of the High Court (Civil Procedure) Amendment (No 2)
Rules, 1977 (LI 1129).<o:p></o:p>The Solicitor-General who is an officer of the Attorney-General,
however. appeared for the Attorney-General and defended the action throughout.
He took part in the whole proceeding, including submitting to judgment for
specific performance as claimed in the writ. The then presiding judge,
Akoto-Bamfo J, adjourned the case to enable the parties to agree on the issue
of damages and costs as agreed by the parties themselves. After several
meetings the parties, namely Delta Foods Ltd, the plaintiffs, and the
representative of the Attorney-General appeared before Nana Gyamera-Tawiah J
with the terms of settlement. The said judge entered judgment in terms of the
settlement on 15 October 1998. This is the consent judgment which the
Attorney-General seeks in his application for certiorari to quash on the ground
that the name of the Minister for Agriculture was used in the writ as the
defendant instead of that of the Attorney General and therefore that the
consent judgment was “void and of no effect.”<o:p></o:p>Article 88(5) of the Constitution, 1992 states that:<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">“(5) The Attorney-General shall be responsible for the institution
and conduct of all civil cases on behalf of the State; and all civil
proceedings against the State shall be instituted against the Attorney-General
as defendant.”<o:p></o:p>(The emphasis mine.) The rationale of this article, namely to
institute civil proceedings against the Attorney-General was to ensure that the
Attorney-General conducted the defence in all civil cases against the State, he
really is the nominal defendant. The Attorney-General’s representative, the
Solicitor General did in fact conduct of the defence, thus satisfying the
objective in article 88(5) of the Constitution, 1992.<o:p></o:p>Therefore the mistake in not using his name as nominal defendant
was in effect only a technicality, which could be rectified without affecting
the real substance of the case.<o:p></o:p>High Court can rectify the said error by amendment, this as that
power: see article, 129(4) of the Constitution, 1992. In order to determine the
real issue in controversy between the proper parties, the necessary amendment
to the title of the cas( should be made in suit No 495/98 by substituting the
Attorney. General in place of the Minister for Agriculture as the defendant:
set the Supreme Court case of Ghana Ports and Harbours Authority v Issoufou
[1993-94] 1 GLR 24, SC. Except for this amendment, I would also dismiss the
application for certiorari.<o:p></o:p>JUDGMENT OF
AMPIAH JSC.<o:p></o:p>Upon the whole, I agree with my brother Acquah JSC that the
application be refused The applicant complains of the failure of the respondent
to make him the defendant in the action. He contends therefore that the whole
action before the High Court was null and void as the court in the
circumstances lacked jurisdiction to adjudicate on the matter.<o:p></o:p>Article 88 (3) of the Constitution, 1992 requires that civil
proceedings against the State should be instituted against the Attorney-General
as the principal legal adviser to the government, though section 10 (2) of the
State Proceedings Act, 1961 (Act 51) makes it permissive only. There is
therefore litt</main>