MR. JAMES BADU vs. THE REGIONAL DIRECTOR GHANA HEALTH SERVICE, CAPE COAST. AND THE MEDICAL SUPERINTENDENT GOVT. HOSPITAL, SALTPOND [2012]DLCA4931

MR. JAMES BADU vs. THE REGIONAL DIRECTOR GHANA HEALTH SERVICE, CAPE COAST. AND T... [2012]DLCA4931

Date	2012-01-11
Suit No.	CIVIL APPEAL NO: H1/196/2011
Citation No.	[2012]DLCA4931

MARFUL-SAU JA

(PRESIDING)

HONYENUGA JA

DENNIS D. ADJEI JA

[2012]DLCA4931
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													<main id="main" class="content" style="min-height: 60rem" >MR. JAMES
BADU<o:p></o:p>(PLAINITFF/ RESPONDENT)<o:p></o:p>vs.<o:p></o:p>THE REGIONAL DIRECTOR GHANA HEALTH SERVICE, CAPE COAST. AND THE
MEDICAL SUPERINTENDENT GOVT. HOSPITAL, SALTPOND<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></o:p>[COURT OF APPEAL, CAPE COAST]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO: H1/196/2011&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: 11TH JANUARY, 2012<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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MARFUL-SAU
JA, (PRESIDING), HONYENUGA JA, DENNIS D. ADJEI JA<o:p></o:p>

</div><o:p>&nbsp;</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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</div>MARFUL-SAU,
JA:<o:p></o:p>The
record of this appeal raises fundamental procedural flaws that renders the
entire trial a nullity. The plaintiff/ respondent herein commenced this action
against the defendants/respondents, who clearly are non juristic persons
lacking legal capacity to sue and be sued. The action was commenced against the
Regional Director, Ghana Health Services and the Medical Superintendent,
Government Hospital Saltpond. These two named as defendants in the action are
not legal entities, a fact Counsel for plaintiff/respondent realised in the
course of the trial. Upon this realisation Counsel for the plaintiff/
respondent applied to substitute the two defendants. In this appeal the
plaintiff/respondent shall be referred to as the respondent and the
defendants/appellants known as appellants.<o:p></o:p>At
page 42 of the record of appeal is the motion filed by Counsel for respondent
to substitute the two defendants who lacked capacity as defendants in the
action. The motion for substitution was heard on the 6th December,
2006 at a time that the respondent had called three witnesses and the
respondent himself was in the witness box testifying in chief. In his
submissions to the court at page 44 of the record of appeal, Counsel for the
respondent argued that the defendants in the action were no legal entities
hence the need to substitute them. Counsel for respondent submitted as
follows:-<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp; ‘’My Lord,
there is an application on for substitution and we are praying this honourable
court that the Attorney Generals Department be substituted for the Regional
Director, Ghana Health Services and the Medical Superintendent, Government
Hospital Saltpond. Because, the two defendants are not legal entities that can
be sued. So we are praying that the Attorney Generals Department be substituted
for those two institutions. And we attached herewith a copy of the notice that
we sent out in compliance with the State Proceedings Act 555.’’<o:p></o:p>Pursuant
to this submission which was not opposed by Counsel for the appellants herein,
the court granted the application as follows:-<o:p></o:p>‘’ By Court:- The application is granted and the
Attorney Generals Department should be the defendants in this case from
today.’’<o:p></o:p>The
first observation that I make with the submission by counsel for the respondent
and the order of the court is that instead of applying to substitute the
Attorney General, Counsel for the respondent applied to join the Attorney Generals
Department and the trial court also granted the application and ordered the
Attorney General Department to be the defendant in the suit. The application
and the subsequent order substituting the Attorney General’s Department as
defendant in the action was itself wrong in law. The office of the Attorney
General is one established by the 1992 Constitution of Ghana. Article 88(5) of
the 1992 Constitution provides thus:-<o:p></o:p>&nbsp; ‘’ 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>Clearly,
the application to substitute the Attorney-General’s Department as defendant
and the grant of same by the trial court was therefore wrong in law and thus
improper. The constitution provides that the Attorney-General was to be the
party with capacity to initiate and defend civil proceedings against the State
and not the Attorney Generals Department. The court therefore erred in
substituting the Attorney-General’s Department as defendant in the action. This
error is nothing compared with the procedural flaws committed by the respondent
after the court had granted the application for substitution, even so in error.<o:p></o:p>As
observed even though the order substituting the Attorney- General’s Department
as defendant was improper in law, it was not effected as required by the rules
of court. The order of substitution in its practical terms sought to join the
Attorney General’s Department to the action as defendant. Order 4 Rule 5 of the
High Court Civil Procedure Rules, 2004, CI 47 deals with joinder and misjoinder
of parties. Order 4 Rule 5(7) provides thus:-<o:p></o:p>