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RULING
1. By writ issued on the
15th day of October
2008 the Plaintiffs commenced
action against the Defendants
seeking reliefs endorsed on the
writ which reliefs are repeated
in the Statement of Claim
accompanying the writ.
2. On 22/10/08 the 1st
Defendant/Applicant herein
invoked the jurisdiction of this
court pursuant to Order 9 rule
8(a) of CI47 praying for an
order that the writ of summons
or accompanying Statement of
Claim be set aside upon grounds
contained in the affidavit in
support of the application.
3. The motion came
before me on 27/10/08 but by
consent of counsel, it was
adjourned for hearing on
3/11/08. On the said date,
counsel for the 1st
Defendant/Applicant drew my
attention to the fact that he
had been served with an amended
writ of summons with a fresh
Statement of Claim accompanying
same.
4. It became clear that
the Plaintiffs/Respondents had
exercised their rights pursuant
to Order 16 rule 3 (1) of CI 47
and had amended the reliefs
sought in this court arising
from the same cause of action on
which the earlier writ now
amended was issued.
5. In view of the fact
that the grounds on which the 1st
Defendant/Applicant’s motion to
set aside the writ would in
substance apply to the amended
writ and Statement of Claim
filed on the 30/10/08, this
court proceeded to hear counsel
on the application.
6. Learned Counsel for
the 1st
Defendant/Applicant argued two
grounds, both of which are
founded on the provisions of
section 92 of the Ghana Ports
and Harbours Authority Act 1986
PNDC Law 160; on which grounds
the 1st
Defendant/Applicant prays this
court for an order to set aside
the writ in this suit.
7. The material
averments contained in the
affidavit in support deposed to
by one Sandra Opoku a manager
legal in the employment of the 1st
Defendant/ Applicant can be
found in paragraphs 4,5,6,7 and
8 of the said affidavit. I donot
intend to reproduce the said
paragraphs but simply put, the 1st
Defendant/ Applicant contends
that by virtue of the provisions
of Section 92(1) of the Ghana
Ports and Harbours Authority Act
1986 PNDCL 160, the Plaintiffs’
action is statute barred having
been commenced more than 12
months after the cause of action
had accrued. In the 1st
Defendant/Applicant’s own
reckoning the instant writ had
been issued almost two years
after Plaintiffs/Respondents’
cause of action if at all, had
accrued.
8. The second ground
upon which the 1st
Defendant/Applicant seeks an
order to set aside the writ is
based on the provisions of
Section 92 (2) and (3) of the
same Act PNDCL 160 which
requires an intending Plaintiff
to give the 1st
Defendant/Applicant a written
notice of one (1) month of
intention to commence action. He
contended that the
Plaintiffs/Respondents herein
having failed to comply with the
mandatory provisions of Section
92 (2) and (3) of PNDCL 160, the
instant action is void and the
writ ought to be set aside.
9. The 2nd
Defendant didnot file any
process in this application but
was represented by counsel
throughout the proceedings.
10. In an affidavit in
opposition filed on the
24/10/08, one Josephine Nkrumah
Barrister at Law acting with the
consent and authority of all the
Plaintiffs/ Respondents
responded to the 1st
Defendant’s/Applicant’s
application.
11. In essence, she
asserts in her affidavit in
opposition that, the depositions
contained in the 1st
Defendant/Applicant’s affidavit
in support of the application
for an order to set aside the
writ are misconceived because
the full and true import of
Section 92(1) of PNDCL 160 has
been misapplied. She deposes
that upon a plain ordinary
interpretation of the language
of Section 92 (1) of PNDCL 160,
the Plaintiffs’ cause of action
cannot be said to be statute
barred.
12. It was also stated in
the Plaintiffs/Respondents’
affidavit that the injury or
damage sustained by the
Plaintiffs/Respondents resulting
from the 1st
Defendant/Respondent’s action
has not abated but continues and
same has been set out in the
Statement of Claim.
13. With respect to the
non - compliance with the
provision for notice before
action, the
Plaintiffs/Respondents by their
affidavit contend that, granted
without admitting that such
notice was mandatorily required
of them, the acts of the 1st
Defendant/ Applicant complained
of are acts which have violated
the provisions of the
Constitution of the Republic
1992 and consequently the want
of pre-action notice per se
would not abate the action.
14. The
Plaintiffs/Respondents further
assert that on the authority of
the decision of the court in the
case of EVANGELICAL
PRESBYTERIAN CHURCH HO VRS.
ATTORNEY GENERAL & OTHERS 1993 –
94 – 2 GLR 429, the 1st
Defendant/Applicant is in fact
not at all entitled to any
notice before action as
contended in this application.
15. I shall now proceed to
deal with the first leg of this
application; that is with
respect to the provisions of
Section 92 (1) of Ghana Ports
and Harbours Authority Act 1986
PNDCL 160. For the avoidance of
doubt, I shall quote the said
provision in extenso.
It is provided as
follows:
LEGAL PROCEEDINGS
Section 92:
LIMITATION OF
SUIT AGAINST AUTHORITY
“(1). A civil action against
the Authority or an employee of
the Authority for an act done in
pursuance or execution, or
intended pursuance or execution,
of an enactment, duty or
authority shall abate unless it
is commenced within twelve
months after the act, neglect or
default complained of, or where
the injury or damage continues
within twelve months after it
ceases”.
16. Based on this rather
clear and unambiguous provision
of the law learned counsel for
the 1st
Defendant/Applicant has urged
this court to set aside
Plaintiffs’ writ same having
allegedly been issued in
contravention of the law as
provided under Section 92 (1) of
PNDC Law 160 quoted above.
17. The
Plaintiffs/Respondents think
otherwise. Their counsel argues
that while they have averred in
Paragraph 13 of their Statement
of Claim that the 1st
Defendant/Applicant notified
them by letter dated 15th
December 2006 that it had
entered into a concession
agreement with the 2nd
Defendant in which the 1st
Defendant/ Applicant purported
to give special concessions to
the 2nd Defendant
exclusively, to operate and
manage some particular berths at
the 1st Defendant/
Applicant’s Tema Port, from
February 2007, including rights
to undertake all stevedoring
operations at the said berths,
because those berths receive and
handle more than 50% of
container traffic at the port,
they had complained against the
implementation of the concession
which will directly affect their
licenses which otherwise
entitles them to operate without
limitation at the said berths
affected.
18. The
Plaintiffs/Respondents further
contend that resulting from the
concession agreement between the
1st
Defendant/Applicant and the 2nd
Defendant the 2nd
Defendant purporting to act on
the authorisation of the 1st
Defendant/Applicant and by
letter dated 25/9/08 sought to
impose limitations on the
business operations of the
Plaintiffs/Respondents by
limiting their right to
stevedore to only ships that
berth with up to 50 containers
at berths 3, 4 and 5.
19. While the 1st
Defendant/Applicant contend that
Plaintiff’s action has been
caught up by the provisions of
Section 92 (1) of PNDC Law 160
and consequently same is statute
barred because the action of the
1st Defendant/
Applicant being complained of
first took place nearly two
years ago, the
Plaintiffs/Respondents argue
that the act of the 1st
Defendant/Applicant and the
injury or damage they suffer is
a continuing one which has not
ceased and therefore on a true
and proper interpretation of the
provisions of Section 92 (1) of
the PNDC Law 160, the action
they have commenced against the
authority is valid and proper.
20. With all respect to
learned counsel for the 1st
Defendant/Applicant, it seems to
me that he has narrowed himself
to an interpretation most
convenient for his case, in
that, time began to run from the
moment the
Plaintiffs/Respondents
acknowledged notice of 1st
Defendant/Applicant’s concession
agreement with the 2nd
Defendant and consequently, the
instant action not having
commenced within a period of
twelve months from that period
same is statute barred. In other
words the facts or combination
of facts which gave rise to the
right of Plaintiffs/Respondents
to sue has abated after twelve
months from the period on or
about 15th December
2006.
21. To my mind, even upon
a casual reading of Section 92
(1), it would be clear that
there are two windows open to a
Plaintiff, one which determines
the period Plaintiffs’ cause of
action against the 1st
Defendant/Applicant ought to
commence whenever it arises and
another period where if a
Plaintiff has suffered from any
damage or injury within which an
action can lie after cessation
of such damage or injury as may
be alleged.
22. It is trite, that one
of the canons of interpretation
is that, effect should be given
to ordinary plain meaning of
words when they are unambiguous
and clear without resorting to
external aid or importing words
into a statute. It is an
elementary and well established
principle of interpretation in
our jurisprudence that where the
wordings of a statute are found
to be clear, plain and
unambiguous, courts should not
embark on a voyage of discovery
to decipher the intention of the
legislature beyond what it
explicitly declares either
expressly or by necessary
implication.
23. This rule on the
construction of statutes guided
the court in the case of SAM
VRS. CONTROLLER OF CUSTOMS &
EXCISE (1971) 1 GLR 289 at 307
where TAYLOR J. (as he then was)
at page 307 quoted with approval
the following passage of Parker
B. in BECKE V SMITH (1836) 150
ER 724 at 726 as follows:
“It is a very useful rule, in
the construction of a statute,
to adhere to the ordinary
meaning of the words used, and
to the grammatical construction,
unless that is at variance with
the intention of the
legislature, to be collected
from the statute itself, or
leads to any manifest absurdity
or repugnance, in which case the
language may be varied or
modified, so as to avoid such
inconvenience but no further”.
Also in the case of
PATU – STYLES VRS.
AMOO-AMPTEY (1984 – 86) 2 GLR
644 at 691 Taylor JSC said
as follows:
“I am, I regret to say, not
aware of any such rule in cases
where the language of an
enactment is so clear that there
is no need to interpret or
construe it and in such a case
there can with great respect be
no question of a broad and
equitable approach or narrow and
technical one. When words are
clear and unambiguous the
fundamental rule is that they
need not be interpreted or
construed. They are given effect
to”.
24. From my understanding
of the provision of Section 92
(1) of PNDC Law 160, it is in
two parts. It provides for two
kinds of situations which may be
give rise to a cause of action
against the 1st
Defendant/Applicant. Firstly, it
contemplates an act of the 1st
Defendant/Applicant which has
been initiated and carried out
and for that matter a completed
act, for which time begins to
run from the day the act or
threatened act manifested, and
secondly, the act, initiated but
which is still being carried out
and ongoing resulting in
continuous injury or damage. In
the first instance, a person
affected by the act of the
authority or its employee with
respect to an act initiated,
carried out and for that matter
completed is required to bring
an action within twelve months
after the act initiated by the
authority or its employee has
been carried out and completed.
Where such a person fails to
commence proceedings in court
for redress within twelve months
from the date when the said
cause of action arose, in other
words from the date when the act
was initiated, carried out and
completed, such a person’s right
is extinguished under the first
situation envisaged by Section
92 (1) of PNDC Law 160.
On the other hand, with regard
to the second situation where
acts of the 1st
Defendant authority complained
of are still being carried out
and ongoing, a person’s cause of
action against the authority
from any injury or damage being
suffered from such ongoing acts
subsists until twelve months
after the injury or damage had
ceased. Time begins to run
against that person’s cause of
action for a period of twelve
months from the last day when
any resultant injury or damage
being suffered from acts,
default, or neglect of the
authority or of its employee
ceases. Therein lies the
difference between the
limitation provisions contained
in the Limitation Act NRCD 54
where time is calculated from
the date of causation and that
of Section 92(1) of PNDC Law 160
where time runs from time of
causation and of cessation of
resultant injury or damage from
the acts, default or neglect of
the Authority or that of its
employees depending on the
circumstances of each case.
25. In his oral
submissions, learned counsel for
the 1st
Defendant/Applicant has referred
me to the case of NTIM VRS.
ACCRA – TEMA CITY COUNCIL & ANOR
1967 GLR 498 where Anterkyi
J. held that injuries continuing
after a twelve month limitation
period was not a continuance of
the ‘damage or injury’ within
the meaning of Section 133 of
the then Local Government Act
1961 (Act 54). Counsel for the 1st
Defendant/Applicant has urged me
to follow the reasoning of the
learned Judge in this decision
and to hold that any injuries or
damages the
Plaintiffs/Respondents in the
instant suit allege to be
continuing or ongoing cannot be
construed as giving them their
cause(s) of action within the
meaning and intendment of
Section 92 (1) of PNDCL 160. I
beg to differ for two reasons.
Firstly, the case referred to,
turned out on the basis of the
peculiar factual circumstances
giving rise to that action.
Secondly, it was decided
relative to a particular statute
the provisions of which are not
in pari - passu with the
provisions of Section 92 (1) of
PNDC Law 160.
26. Counsel for the 1st
Defendant/Applicant has also
referred to me to other cases
such as FIAGA VRS. GHANA
COCOA BOARD 1992 2GLR 393, GHANA
RAILWAY & PORTS AUTHORITY VRS.
OKAKBU 1972 2 GLR 6, AND DEDE &
ORS VRS. TETTEH 1976 1GLR 49
all of which are authorities on
the legal position that it does
not lie within the power of the
court to grant extension of time
limited by statute. Doing
otherwise, it was held would
mean an arrogation by the court
of power to amend the statute. I
have read those decisions and I
respect them. I agree with the
general statement of the law
enunciated in the cases referred
to. But in my respectful opinion
the cases donot apply to the
facts of this case in particular
the provisions of Section 92 (1)
of PNDC Law 160 which admits of
no other interpretation than as
I have done in this ruling.
27. In my view, the
combination of facts and
circumstances giving rise to
Plaintiffs/Respondents’ claim in
this suit cannot be said to have
been foreclosed or abated by the
provisions of Section 92 (1) of
PNDC Law 160 if given its true
and proper interpretation. The
Plaintiffs/Respondents’ action
in my respectful opinion, is
consequently valid and not
barred by statute as contended,
and I so hold.
28. The second leg of 1st
Defendant/Applicant’s
application is based on the
provisions of Section 92 (2) &
(3) of PNDC Law 160 which
provides that:
“92(2) No civil suit
shall be commenced against the
authority until one month at
least after written notice of
intention to commence the action
has been served upon the
Authority by the intending
Plaintiff or his agent”.
29. Learned Counsel for
the 1st
Defendant/Applicant has
submitted that such a pre –
action notice ought to be served
on the 1st
Defendant/Applicant for at least
one month before the
commencement of the instant suit
against the Authority.
Counsel further contends, that
the non-compliance with the
mandatory provision of the
statute is fatal to
Plaintiffs/Respondents’ action
and consequently the writ be set
aside. Counsel has referred me
to a number of cases decided on
this issue none of which in my
respectful opinion took into
consideration the essence of the
pre-action notice in order to
determine whether or not the
fact of non-compliance per se
should necessarily result in an
order to strike out the action
or set aside the writ as prayed
for by the 1st
Defendant/Applicant in this
application. I also did not find
in those decisions any attempt
to relate the provisions of
Section 92(2) of PNDC Law 160
which was enacted in 1986 to
Article 11(6) and the provisions
of Chapter 5 particularly
Articles 12 and 17 of the
Constitution of the Republic of
Ghana 1992.
30. In his reply, Counsel
for the Plaintiffs/Respondents
has urged me to hold that the 1st
Defendant/Applicant is infact
not entitled to any pre - action
notice at all. He relied on the
decision of the court in the
case of EVANGELICAL
PRESBYTERIAN CHURCH HO VRS.
ATTORNEY GENERAL AND OTHERS (HC)
1993 – 94 2GLR 429 where the
learned judge traced the history
of the pre action notice
provision contained in the State
Proceedings Act 1961 (Act 51) as
amended by the State Proceedings
Act (Amendment) Decree (1969)
NLCD 352 and after analyzing
various case law authorities
came to the conclusion that the
pre-condition of one month’s
statutory notice under the
constitutional legal regime at
the time, places the Attorney
General who is Defendant in that
suit on a pedestal. The learned
Judge further questioned what is
so special about actions against
the state that a person
intending to sue the Attorney
General has to serve notice on
him and keep his fingers crossed
for one month before taking out
the writ of summons.
31. Before I arrive at any
determination of the second
ground of 1st
Defendant/ Applicant’s
application, I intend to do a
brief historical overview of pre
- action provisions in some
statutes and the interpretation
put on them by the Superior
Courts.
I shall dwell particularly on
the provisions contained in the
State Proceedings Act of 1961
(Act 51) which was amended by
the State Proceedings Act
(Amendment) Decree 1969 (NLCD
352) now repealed and in its
place the current State
Proceedings Act 1998 (Act 555)
which has similar but modified
provisions with respect to the
effect of non – compliance and
exemptions in constitutional and
human rights matters. All these
statutes require that the
Attorney General shall be given
one month’s notice before
action. In giving an
interpretation and effect to the
provisions of Section 92(2) of
PNDC Law 160, I will discuss the
decisions of our courts and the
effect of such notice to
statutory bodies such as the 1st
Defendant/Applicant as well as
the effect if at all, of failure
to comply with such statutory
requirement.
32. Before the coming into
force of the State Proceedings
Act 1998 (Act 555) failure to
comply with the mandatory one
month pre – action notice on the
Attorney General was construed
by the courts as fatal. In Act
555 however, this situation has
changed. Where no notice as
required by the law is given to
the Attorney General Section
20(2) states that “the
court shall not dismiss the
action but direct the Plaintiff
to give the Attorney – General
the requisite notice and adjourn
the case accordingly”
For all intents and purposes the
action is not rendered a
nullity. In the case of KUAH
VRS. ATTORNEY GENERAL (HC)
(1981) 1GLR 481 - 489 the
court upheld the Attorney –
General’s preliminary objection
on the ground that failure by
the Plaintiff to serve on the
Attorney General one month’s pre
action notice rendered the
Plaintiff’s action incompetent.
In that suit, counsel for the
Plaintiff had argued that by the
provisions of Article 211 (1) of
the Constitution of Ghana 1979
all claims against the state
were to be construed as being on
equal footing with claims
against ordinary citizens. He
submitted that under Article 211
(1) of the said constitution an
action against the State is as
of right because the
constitution had by implication
taken away the provisions of the
State Proceedings Act
(Amendment) Decree NLCD 352
which required one month’s
notice to be served on the
Attorney General before a civil
action can commence against his
office.
33. In upholding the
Attorney General’s preliminary
objection, the court held that
the purpose of the ‘fiat’ as
required under the State
Proceedings Act 1961 (Act 51)
which did not exist by virtue of
the provisions of the State
Proceedings Act (Amendment)
Decree 1969 (NLCD 352) was to
give a Plaintiff authority to
sue. The ‘fiat’ in the view of
the court operated as a license
to commence action against the
state. It was further held by
the court that the ‘fiat’ could
not be equated with the
requirement of ‘notice’ required
under the State Proceedings Act
(Amendment) Decree 1969 NLCD 352
paragraph 1(1) of which enjoined
a potential Plaintiff intending
to bring an action against the
state to serve a month’s notice.
Once notice was served, all the
Plaintiff needed to do was to
wait for one month after which
he was at liberty to commence
action.
34. The court took the
view that the pre - condition to
maintain action under the ‘fiat’
had placed the state in a
privileged position whereas the
condition for one month’s pre
action notice did not
necessarily place the state in
any such position.
It was the court’s view that the
rationale for the pre action
notice was to bring to the
notice of the Attorney – General
a clear intention of a
Plaintiff’s desire to sue if the
Attorney General did not take
steps to remedy or settle any
grievance being complained of.
The period of one month would
therefore give the Attorney
General time to contact the
particular state department
directly involved in the action
being contemplated for the
necessary information to enable
the Attorney General’s office
study the nature of the intended
claim and to give the necessary
advice. The court therefore
concluded that the provisions of
the State Proceedings Act (Act
51) 1961 as amended by the State
Proceedings Act (Amendment)
Decree NLCD 352, did not in
anyway conflict with the
provisions of Article 211(1) of
the Constitution of Ghana 1979
and consequently notice as
required under the law was still
a pre – condition.
35. It is to the same
effect that the court decided
the case of ASIEDU – ADDO &
ANOR VRS. COMPTROLLER OF CUSTOMS
& EXCISE & ORS. (HC) (1981) GLR
505 where due to the failure
of the Plaintiff to comply with
the one month’s pre action
notice under the State
Proceedings Act (Amendment)
Decree (NLCD 352), the
Plaintiff’s action was struck
out as incompetent. In upholding
the Attorney – General’s
preliminary objection, the court
held that notice as required by
the statute was a temporizing
mechanism to give the Attorney –
General time to study the
intending action and to decide
whether or not it would be
worthwhile to litigate, or
advise settlement in appropriate
cases. The court however held
obiter that if inspite of the
non compliance, the Attorney –
General entered an unconditional
appearance then he would seem to
have submitted himself to the
jurisdiction of the court and
waived the pre-action notice
condition and could not later
raise it as a defence to defeat
the claim once he had entered
unconditional appearance to the
Plaintiff’s writ.
36. In the case of KUAH
VRS. ATTORNEY GENERAL
already cited in this ruling,
the relief sought by the
Plaintiff was for an injunction
to restrain the Defendants from
unlawfully interfering with his
trade as a seaman. A question
arises whether in this regard it
would be fair to insist that
such a Plaintiff must comply
with the one month pre - action
notice and then stand aloof to
see his trade and livelihood
suffer from the conduct of the
Defendants for one month before
commencing an action court. Is
there an obligation on such
Plaintiff to take reasonable
steps to mitigate his losses?
What happens if the conduct
complained of results in the
irretrievable violation of his
rights for which damages would
not be a sufficient remedy?
Would a court be administering
justice if its jurisdiction is
invoked by a Plaintiff on a
violation of his rights, and the
court shuts the door at the
Plaintiff by merely saying
Well I agree that your rights
are being violated but go and
come back after one month. That
is what the law says and even if
after one month your rights are
violated beyond any redemption,
and damages will not adequately
compensate you, the law is the
law. The plight of such a
Plaintiff would be worsened when
the Defendant as in the instant
application, has not explained
what it intends to do should the
court decide to stay further
proceedings for one month as is
the situation under Section
20(2) of the State Proceedings
Act 1998 (Act 555) with respect
to civil actions against the
Attorney – General earlier
referred to in this ruling.
37. In my respectful
opinion, there may be good
reason for allowing the Attorney
General in cases involving the
state, notice for one month to
conduct the necessary
investigations from agents of
the state in order to take a
decision whether or not to
contest a potential action
against the state. But can same
be said of a potential claim
between the 1st
Defendant/Applicant herein and
for example its employees? Is it
to enable the authority contact
itself or its employee? Granted,
I accept the reasoning that by
the nature of his office and
being invariably a nominal
defendant in matters involving
the state, it is reasonable for
the Attorney General to have at
least one month’s pre – action
notice, I am unable to see the
rationale in the 1st
Defendant/Applicant relying on
the pre – action notice
provision notwithstanding the
provisions of section 92(2) of
PNDC Law 160. I shall in due
course explain further the basis
of the position I have taken by
examining some of the decided
cases on the issue of one month
notice before action, within the
context of the provisions of the
Constitution of Ghana 1992 the
Supreme law of the land and to
which all other laws must be
interpreted to be in conformity
and consistent with, and to the
extent of any inconsistency they
be ignored as void.
38. In KUAH VRS.
ATTORNEY GENERAL (already
cited) counsel for the Plaintiff
had argued that by Article
211(1) of the 1979 Constitution,
all claims against the state had
been put on equal footing with
claims between individual
citizens. The Plaintiff in that
suit further argued that under
Article 211(1) of the 1979
constitution, an action against
the state would lie as of right
because the provisions of the
said constitution had by
implication eroded the
provisions of the State
Proceeding Act (Amendment)
Decree NLCD 352. The court
refused to accept this argument
and on the contrary held that
since the rationale for the one
month pre – action notice was
intended to offer the office of
the Attorney – General an
opportunity within one month to
contact the particular state
department involved in the
action being contemplated, for
necessary information to enable
the Attorney General’s office to
study the intending claim to
offer the necessary advice, the
said provisions of the State
Proceedings Act 1961 as amended
by NLCD 352 did not in any way
conflict with the provisions of
Article 211 (1) of the 1979
Constitution. Those provisions
of Article 211(1) have been
replicated in Article 293(1) of
the Constitution of the Republic
1992 which states: Article
293(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”
39. Within the context of
the provisions of Article
293(1), 11 (6), and 17(1) of the
Constitution of the Republic
1992 therefore, I will
respectfully depart from the
reasoning of the court in the
case of KUAH VRS. ATTORNEY
GENERAL because by the
provisions of the Constitution
of Ghana 1992 all persons are by
virtue of Article 17(1) of the
Constitution equal before the
law and by Article 11(6) all
existing laws before the coming
into force of the Constitution
“shall be construed with
any modifications, adaptations,
qualifications and exceptions
necessary to bring it into
conformity with the provisions
of this Constitution, or
otherwise to give effect to, or
enable effect to be given to,
any changes effected by this
Constitution”.
40. I have critically
examined the GHANA PORTS &
HARBOURS AUTHORITY ACT 1986 PNDC
Law 160 an existing law
prior to the coming into force
of the constitution under which
the 1st
Defendant/Applicant was created.
I am in no doubt whatsoever that
it has the powers of a natural
person of full capacity and may
sue and be sued.
Under Sections 2 (2) and (3) of
the Act it is provided as
follows:
“(2). The Authority shall
have perpetual succession and a
common seal and may sue or be
sued in its corporate name.
(3). The Authority may, for
the performance of its
functions, acquire and hold
movable property, including
electric motive power and
immovable property, dispose of
property and enter into a
contract or any other
transaction”
41. It is against the
background of the provisions
relating to equality before the
law for all persons as contained
in the 1992 Republican
Constitution of Ghana that in
the case of EVANGELICAL
PRESBYTERIAN CHURCH HO VRS.
ATTORNEY GENERAL already
cited, the court refused to
follow the decision in KUAH
VRS. ATTORNEY GENERAL.
42. In view of the fact
that the decision in the
EVANGELICAL PRESBYTERIAN CASE
was made within the context of
the 1992 Republican
Constitution, I shall make
copious references to some of
the points discussed by the
learned judge in arriving at my
conclusion in this ruling.
The most crucial point
considered by the learned Judge
is the effect of the provisions
of Articles 17(1) and (3) and
293 (1) of the 1992 Constitution
on the requirement of pre –
action notices as for example
provided for in section 92(2) of
PNDC Law 160.
Article
17(1) and (3) of the 1992
Constitution states:
“17(1). All persons
shall be equal before the law.
(3). For the purposes of
this article, “discriminate”
means to give different
treatment to different persons
attributable only or mainly to
their respective descriptions by
race, place of origin, political
opinions, colour, gender,
occupation, religion or creed,
whereby persons of one
description are subjected to
disabilities or restrictions to
which persons of another
description are not made subject
or are granted privileges or
advantages which are not granted
to persons of another
description”.
As I have already stated, in
Article 293(1) of the
Constitution of the Republic
1992 it is provided that:
“293 (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”
43. The Learned Attorney
General in the case under review
had argued that the one month’s
pre – action notice was still
valid as a precondition for the
commencement of any civil suit
against his office; citing
KUAH VRS. ATTORNEY GENERAL
which had decided that Article
211 of the 1979 was not in
conflict with NLCD 352 (State
Proceedings Act (Amendment)
Decree as well as ASIEDU –
ADDO VRS. COMPTROLLER OF CUSTOMS
& EXCISE as his authorities
for his proposition. The
Attorney General further argued
that the statutory requirement
of one month pre-action notice
to be served on his office
before the commencement of any
civil action was not in conflict
with the provisions of the 1992
constitution and that nothing in
the constitution explicitly
repeals Section 1(2) of the
State Proceedings Act 1961 Act
51 as amended by the State
Proceedings Act (Amendment)
Decree 1969 NLCD 352 then in
force before the enactment of
the State Proceedings Act 1998
(Act 555).
44. In dismissing the
Attorney – General’s submissions
the learned judge made far
reaching observations to the
effect that the condition of one
month’s notice of intention to
sue as required by Section 1(2)
of Act 51 as amended by NLCD 352
puts the Attorney General in a
privileged position not open to
an ordinary person capable of
suing and being sued.
The Learned Judge
further held at 438 of the
report that:
“The extant legislation in
respect of suits brought against
the state is Article 293 of the
Constitution 1992 which because
it forms part of the fundamental
laws of the land overrides all
other laws on the matter”.
He concluded by holding that
Act 51 Section 1(2) as
substituted by the NLCD 352
which provided for a statutory
notice of one month to be served
on the Attorney General before
the commencement of an action
against the Republic is in
conflict with Article 293 of the
Constitution 1992 and to the
extent of the inconsistency it
ought to be struck down under
Article 1(2) of the same
constitution which states that:
“This Constitution shall be
the Supreme Law of Ghana and any
other law found to be
inconsistent with any provision
of this constitution shall; to
the extent of the inconsistency
be void”.
The Learned Judge declared
accordingly that “I
further hold that no written
notice is now required to be
served on the Attorney – General
before an action is instituted
against the Republic. And it
makes no difference whether the
action is based on the
constitution or not. There was
therefore, no compelling reason
for the Plaintiff herein to
serve one month’s notice on the
attorney General before
commencing an action against the
first, second and third
Defendants herein”.
45. I cannot but agree
with the learned Judge’s
conclusions. One may ask if the
Constitution of the Republic
will permit a suit against the
state as if it were an ordinary
person and in that sense the
state could be sued without any
pre-action notice, what is so
special of the 1st
Defendant/Applicant that a
person who seeks his rights
vindicated in this court and
requires the timeous
intervention of this court to
prevent an irretrievable
violation of his right, must
have to give one month’s notice
before invoking the jurisdiction
of the court in the protection
of his rights?
46. In the light of the
erudite exposition of the status
of pre-action notices relative
to the provisions of the
Constitution of the Republic
1992 already referred to in this
ruling, I am more inclined to
follow the decision of the court
in the EVANGELICAL
PRESBYTERIAN CHURCH VRS.
ATTORNEY GENERAL case than
to adopt slavishly the reasoning
of the court in KUAH VRS.
ATTORNEY GENERAL AND ASIEDU –
ADDO VRS. COMPTROLLER OF CUSTOMS
which would have been a set back
to persons who invoke the
jurisdiction of this court for
remedies when their
constitutional and/or economic
rights are threatened or
violated for the ventilation of
those rights as provided under
the 1992 Constitution of the
Republic of Ghana.
47. I am equally not
persuaded by the cases cited by
Learned Counsel for the 1st
Defendant/Applicant in support
of the second leg of this
application, because I
respectfully did not find them
useful authority to be followed
on the validility of the one
month’s statutory notice to
commence action against the 1st
Defendant/Applicant within the
context of the provisions of the
Constitution of the Republic
1992 referred to in this ruling.
I must mention in particular the
ruling of the High Court in Suit
No. C170/94 between ADVENTIST
DEVELOPMENT AND RELIEF AGENCY
VRS. GHANA PORTS AND HARBOUR
AUTHORITY referred to and
relied upon by counsel for the 1st
Defendant/Applicant to contend
that the 1st
Defendant/Applicant i.e. Ghana
Ports and Harbours Authority
cannot be subjected to the
provisions of Chapter Five of
the Constitution of the Republic
1992 and consequently even
though the Interpretation Act
CA4 gives the definition of a
‘person’ to include corporate
bodies, Chapter 5 of the
Constitution under which Article
17(3) falls clearly relates to
individuals and in no way deals
with corporate bodies or legal
persons.
With all due respect to the
learned Judge, I think he got it
entirely wrong because he failed
to advert his mind to the
provisions of Article 12(1) the
very opening Article of Chapter
Five of the Constitution he had
used to insulate the 1st
Defendant/Applicant from the
application of Article 17 of the
Constitution. I shall for the
avoidance of doubt, quote
Article 12(1) of Chapter 5 of
the Constitution which states:
“12(1). The
Fundamental Human Rights and
Freedoms enshrined in this
chapter shall be respected and
upheld by the Executive,
Legislature and Judiciary and
all other organs of government
and its agencies and, where
applicable to them, by all
natural and legal persons in
Ghana, (The emphasis is
mine) and shall be enforceable
by the courts as provided for in
this Constitution”.
The conclusion by the learned
Judge in the said suit that
Chapter Five of the 1992
Constitution of Ghana on the
provisions of Fundamental Human
Rights and Freedoms apply only
to natural persons is therefore
demonstrably wrong.
As contended by the counsel for
the Plaintiffs/Respondents in
this application, no pre-action
notice as provided under section
92(2) of PNDC Law 160 is
required to be served on the 1st
Defendant/Applicant at all, and
I so uphold.
Counsel for the 2nd
Defendant did not file any
process in this application.
Nevertheless he had the
opportunity to address the court
on the application. Counsel for
2nd Defendant
associated himself with all the
submissions made by counsel for
the 1st
Defendant/Applicant. He added
that since the Plaintiff’s
primary relief raises a
constitutional issue about the
legality of the concession
agreement between the 1st
Defendant/Applicant and the 2nd
Defendant for want of
parliamentary approval, the
proper forum for the Plaintiffs
is the Supreme Court and not the
High Court. I agree with counsel
for the Plaintiffs that the
issue raised by the 2nd
Defendant’s counsel has nothing
to do with the instant
application and same be ignored
as it is totally misconceived.
For all the reasons I have set
out in this ruling, the
application to set aside the
Plaintiffs/Respondents’ writ on
the grounds contended and argued
by counsel for the 1st
Defendant/Applicant lacks merit
and same is consequently
dismissed.
I shall award costs of GH¢250.00
in favour of the Plaintiffs
against the 1st
Defendant.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
K. SEY ESQ. (FOR 1ST
DEFENDANT/APPLICANT)
NARTEY – TETTEH ESQ.
(FOR 2ND DEFENDANT)
J. ACQUAH – SAMPSON
ESQ. (FOR PLAINTIFFS/RESPONDENTS).
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