PATRICK TEKPETEY & THREE OTHERS vs. ATTORNEY GENERAL [2016]DLCA4452

Date	2016-11-17
Suit No.	CIVIL APPEAL NO: H1/130/2016
Citation No.	[2016]DLCA4452

MARIAMA OWUSU JA (PRESIDING)

ADUAMA OSEI JA

KWOFIE JA

ANKOMAH MENSAH FOR PLAINTIFF/APPELLANT

GRACE OPPONG FOR 4TH DEFENDANT/RESPONDENT

[2016]DLCA4452
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													<main id="main" class="content" style="min-height: 60rem" >PATRICK TEKPETEY &amp; THREE OTHERS<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs.<o:p></o:p>ATTORNEY GENERAL<o:p></o:p>(4TH DEFENDANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, 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: H1/130/2016&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;17TH NOVEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ANKOMAH
MENSAH FOR PLAINTIFF/APPELLANT<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" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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DEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>MARIAMA
OWUSU JA (PRESIDING), ADUAMA OSEI JA, KWOFIE JA <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="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ADUAMA
OSEI<o:p></o:p>Pending before the Human Rights Division of the
High Court, Accra, is an action in which the Plaintiffs/Appellants, hereinafter
called “the Plaintiffs”, are seeking
reliefs against the Defendants for injuries allegedly suffered by them as a
result of the alleged negligence of the Defendants, who include the 4th
Defendant/Respondent, the Attorney-General.<o:p></o:p><o:p>&nbsp;</o:p>The writ of summons in the action was issued on the
18th of February, 2013, and upon being served therewith, the
Attorney-General entered a conditional appearance and, about 9 days thereafter,
filed an application under Order 4, rule 5(2) (a) of the Rules of the High
Court, CI. 47, for her name to be struck out on ground of misjoinder. In the
affidavit supporting the application, the Attorney-General contended that the 1st
and 2nd Defendants, in whose interest she might possibly have been
made a party to the action, were both bodies corporate, capable of suing and
being sued. Her presence in the suit as a party was therefore unnecessary and
her name ought to be struck out.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiffs however resisted the application,
contending that the Government of Ghana was vicariously liable for the
negligence alleged against the 1st and 2nd Defendants.
They contended further that the injuries sustained by them were too grievous to
permit any of the parties being allowed to opt out of the action while the
question of liability had not been determined.<o:p></o:p><o:p>&nbsp;</o:p>In its ruling in the application, delivered on the
16th of April, 2013, the trial Court upheld the submissions made on
behalf of the Attorney-General and struck her name out as a party. Explaining
its decision, the trial Court noted that the acts complained about in the
action were alleged against the 1st, 2nd and 3rd
Defendants. The Attorney-General had been brought into the action on account of
the 1st and 2nd Defendants; not because of any issue
raised in the action that necessitated the presence of the Attorney-General.
The trial Court considered that since the 1st and 2nd
Defendants were both bodies corporate capable of suing and being sued, the
inclusion of the Attorney-General as a party was unnecessary. The trial Court
adverted to instances in the past when the name of the Attorney-General had
been struck out as a nominal defendant in suits because the substantive
defendants were bodies corporate with legal personae.<o:p></o:p><o:p>&nbsp;</o:p>The Plaintiffs/Appellants are however not satisfied
with the ruling of the trial Court and they are in this appeal, praying this
Court to set the same aside on the grounds (a) that “(t)he Learned Judge erred in law when he struck out the name of the
Attorney-General when materially the entire high tension contract that led to
the injury was a Government of Ghana
contract”, and (b) that “(t)he
ruling is against the weight of evidence.” The ruling of the trial Court is
at page 32 and page 33 of the Appeal Record, and the Notice of Appeal is at
page 88 and page 89 of the same record.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the Plaintiffs gave the impression in
his filed submissions that he was going to deal with the two grounds of appeal
one after the other. He however ended up not dealing with Ground (b). Under
Ground (a), Counsel for the Plaintiffs contended that the trial Court ought to
have taken judicial notice of the fact that the ele</main>