EBUSUAPANYIN KWEKU ACKON AND ABRAHAM BEDWEI (PLAINTIFFS) vs. LANDS COMMISSION (DEFENDANT) [2005]DLHC7412

EBUSUAPANYIN KWEKU ACKON AND ABRAHAM BEDWEI (PLAINTIFFS) vs. LANDS COMMISSION (D... [2005]DLHC7412

Date	2005-09-01
Suit No.	SUIT NO. E1/7/04
Citation No.	[2005]DLHC7412

HIS LORDSHIP C. J. HONYENUGA J.

MR. ACHEAMPONG OPOKU FOR THE PLAINTIFFS

MR A. ARVOH MENSAH FOR THE DEFENDANT

[2005]DLHC7412
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN KWEKU ACKON AND ABRAHAM BEDWEI<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>LANDS COMMISSION<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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NO. E1/7/04&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:1ST
&nbsp;SEPTEMBER, 2005<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
ACHEAMPONG OPOKU FOR THE PLAINTIFFS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR A. ARVOH MENSAH 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;
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HIS LORDSHIP C. J. HONYENUGA J.<o:p></o:p>

</div>The
Plaintiffs filed a motion for interim injunction to restrain the defendant, his
agents, assigns and workmen from interfering with the subject matter of dispute
until the final determination of the suit. Before this application was filed
pleadings had closed and Summons for Directions as filed was taken on the 25th
February, 2004. One Mr. S. K. Kumatia, a Principal State Attorney at the Lands
Commission, the defendant herein filed the Appearance and the Statement of
Defence. In reaction to the said motion, Mr. Arvoh Mensah a private legal
practitioner filed a Notice of Change of Lawyer and an Affidavit in Opposition
on the 21st July, 2005 on behalf of the defendant herein. It is against the
representation of Mr. Arvoh Mensah that is the subject mater of this Ruling. <o:p></o:p>Mr.
Acheampong Opoku, the learned Lawyer for the Plaintiffs raised a preliminary
legal objection against Mr. Arvoh Mensah appearing for the defendant contended
that the Lands Commission was created by Article 258 of the 1992 Constitution
and by Article 88 of the same Constitution particularly Article 88 (5) the
Attorney-General is responsible for the conduct of Civil cases on behalf of the
State and submits that Lawyers working with the Attorney General's Department
are seconded to the Lands Commission. He referred to the Notice of Entry of
Appearance filed on 17/12/03 by Mr. S. K. Kumatia, a Principal State Attorney
seconded to the said Commission who also filed the Statement of Defence. He
submitted that since the said Commission was created by the Constitution and it
is a state institution and therefore it is only Lawyers from the
Attorney-General's Department who can represent the Commission. He concluded by
submitting that Mr. Arvoh Mensah is a private legal practitioner and has no
basis to represent a state institution. <o:p></o:p>Mr.
Augustine Arvoh Mensah, the learned Lawyer for the Defendant Commission
submitted that the application is misconceived because under the C.I. 47
preliminary objections cannot be made by ignoring Order 81 Rule 2 (1) and (6).
According to Mr. Arvoh Mensah he filed his Notice of Change of Lawyer since
21/7/05 and if Mr. Acheampong-Opoku felt it was wrong he should have applied
under Order 81 to set it aside and having filed could not raise objection. He
contended that under Article 88(5) of the 1992 Constitution the present action
was brought against the Lands Commission and not the State. He referred to Act
555 Section 9 and 10 of the State Proceedings Act, the action should have been
brought against the Attorney-General and by Section 10, he should have given 30
days notice but he failed. He referred to Section 20 (5) of the Lands
Commission Act, 1994, Act 483 which says the Commission may engage services of
consultants and advisers and therefore submitted that the objection be
overruled. <o:p></o:p>With
leave, Mr. Acheampong-Opoku submitted that Order 81 is not applicable because
the appearance of Mr. Arvoh Mensah is void. <o:p></o:p>The
main issue arising out of the various arguments to me is whether or not a
private legal practitioner can represent a state institution created under the
1992 Constitution like the Lands Commission without authorisation from the
Attorney-General. <o:p></o:p>Before
I set out to consider the various arguments, I shall reproduce hereunder
relevant legislations referred thereto:— Articles 88(1) and (5) and 258 of the
1992 Constitution of the Lands Commission, 1994. <o:p></o:p>"88 (1) There shall be an
Attorney-General of Ghana who shall be a Minister of State and the Principal
legal adviser to the Government. <o:p></o:p>(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>Article
258 of the 1992 Constitution:— <o:p></o:p>"258
(1) There shall be established a Lands Commission which shall, in co-ordination
with the relevant public agencies and governmental bodies, perform the
following functions:— <o:p></o:p>a)
on behalf of the Government, manage public lands and any lands vested in the
President</main>