THE REPUBLIC vs. HIGH COURT (FAST TRACK DIV.) ACCRA EX-PARTE; ATTORNEY GENERAL AND MADAM MAUD NONGO [2013]DLSC2738

THE REPUBLIC vs. HIGH COURT (FAST TRACK DIV.) ACCRA EX-PARTE; ATTORNEY GENERAL A... [2013]DLSC2738

Date	2013-01-24
Suit No.	CIVIL APPEAL NO. J5/24/2012
Citation No.	[2013]DLSC2738

ATUGUBA J.S.C (PRESIDING)

DR. DATE-BAH J.S.C

ADINYIRA (MRS) J.S.C.

OWUSU (MS) J.S.C.

DOTSE J.S.C

ANIN YEBOAH J.S.C

BAFFOE BONNIE J.S.C

CECIL ADADEVOH FOR THE APPLICANT.

JACOB ACQUAH-SAMPSON (WITH HIM MS. FIONA ASAFUA AGYEI AND

LAWRETTA YEBOAH NKRUMAH) FOR THE INTERESTED PARTY.

[2013]DLSC2738
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH COURT (FAST TRACK
DIV.) ACCRA<o:p></o:p>EX-PARTE; ATTORNEY GENERAL AND MADAM MAUD NONGO&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; <o:p></o:p>[SUPREME COURT, ACCRA]<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. J5/24/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 24TH
JANUARY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>CECIL ADADEVOH FOR THE
APPLICANT.<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">

JACOB
ACQUAH-SAMPSON (WITH HIM MS. FIONA ASAFUA AGYEI AND LAWRETTA YEBOAH NKRUMAH)
FOR THE INTERESTED PARTY.<o:p></o:p>

</div>CORAM: <o:p></o:p>ATUGUBA &nbsp;J.S.C (PRESIDING), DR. DATE-BAH J.S.C,
ADINYIRA (MRS) J.S.C., OWUSU (MS) J.S.C., DOTSE J.S.C, ANIN YEBOAH J.S.C, BAFFOE
BONNIE&nbsp; J.S.C<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>DR. DATE-BAH JSC:<o:p></o:p>This
case raises interesting constitutional issues going to the very heart of the
principle of the rule of law, one of the bedrocks of the 1992
Constitution.&nbsp; The applicant’s contention
that public funds and government property cannot be attached in execution of
judgment debts puts into issue the accountability of the State to persons who
bring action before the courts.&nbsp; The
current position regarding the liability of the State to ordinary people in
Commonwealth jurisdictions has come about through statutory reform of the
original common law position in order to adjust it to the demands of a modern
state.&nbsp; The applicant’s contention raises
the issue whether the gains of this reform movement are to be lost to litigants
before the Ghanaian courts.<o:p></o:p>At
common law, originally, proceedings could be brought against the Crown for
breach of contract or restitution of property only after obtaining a fiat from the Crown and through the
procedure of the petition of right.&nbsp;
Indeed, in tort, the Crown could not be sued at all, since “the King
could do no wrong”.&nbsp; By the Crown
Proceedings Act 1947 of the United Kingdom, these two antiquated common law
doctrines were abolished and the liability of the Crown was made as near as
possible to that of a private citizen.&nbsp;
This reform of abolishing the necessity for a fiat and a petition of right and the removal of the State’s
immunity from suit for tort made the State and all other legal persons equal
before the law, at least in the formal sense.&nbsp;
This is to be contrasted with the regime in many European States, where
a different and separate system of administrative law governs the relations
between the State and other legal persons.&nbsp;
Indeed the common subjection of the State and other legal persons to the
same body of rules was viewed by Dicey as an important aspect of his conception
of the rule of law.<o:p></o:p>The
Crown Proceedings Act 1947 of the United Kingdom is mentioned here because it
has exerted an influence on Ghanaian law as well.&nbsp; Article 293 of the 1992 Constitution, which
deals with claims against the Government, clearly follows in the trail blazed
by the Crown Proceedings Act, 1947.&nbsp; It
provides as follows:<o:p></o:p>“(1) Where a
person has a claim against the Government, that claim may be enforced as of
right by proceedings taken against the Government for that purpose without the
grant of a fiat or the use of the process known as petition of right.<o:p></o:p>(2) The
Government shall be subject to all those liabilities in tort to which, if it
were a private person of full age and capacity, it would be subject - <o:p></o:p>(a) in respect of
torts committed by its employees or agents; <o:p></o:p>(b) in respect of
a breach of duties which a person owes to his employees or agents at common law
or under any other law by reason of being their employer; and <o:p></o:p>(c) in respect of
a breach of the duties at common law or under any other law attached to the
ownership, occupation, possession or control of property.<o:p></o:p>(3) No
proceedings shall lie against the Government by virtue of paragraph (a) of
clause (2) of this article in respect of an act or omission of an employee or
agent of the Government unless the act or omission would, apart from this
article, have given rise to a cause of action in tort against that employee or
his estate.<o:p></o:p>(4) Where the
Government is bound by a statutory duty which is binding also upon persons
other than the Government and its officers, the Government shall, in respect of
a failure to comply with that duty, be subject to all liabilities in tort to
which it would be so subject if the Government were a private person of full
age and capacity.<o:p></o:p>