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STATE PROCEEDINGS ACT, 1998 (ACT
555)
ARRANGEMENT OF SECTIONS
Section
1. Claims against the State
2. Liability of the State in
contract
3. Liability of the State in tort
4. Non-liability of State
5. Application of law relating to
indemnity
6. Provision as to intellectual or
individual property
7. Provisions relating to the
Armed Forces
8. Civil proceedings by or against
the State to be in accordance with
rules of court
9. Parties to proceedings
10. Notice of civil action to
Attorney-General
11. Interpleader
12. Service of documents
13. Nature of relief against the
State
14. Appeals and stay of execution
15. Satisfaction of orders
16. Enforcement of orders
17. Attachment of money
18. Discovery and Interrogatories
19. Notice of proceedings in rem
against the State
20. Exceptions to giving notice of
action
21. Application of certain
enactments
22. Costs in proceedings
23. Rules of Court
24. Non-application of Act
25. Pending proceedings
26. Interpretation
27. Repeals
THE FIVE HUNDRED AND FIFTY-FIFTH
ACT OF THE PARLIAMENT OF THE
REPUBLIC OF GHANA
ENTITLED
THE STATE PROCEEDINGS ACT, 1998
AN ACT to revise the State
Proceedings Act, 1961 (Act 51) to
bring its provisions in conformity
with the relevant provisions of
the Constitution, to provide
generally for civil claims by or
against the State and to provide
for related matters.
DATE OF ASSENT: 19th August, 1998
BE IT ENACTED by Parliament as
follows—
Section 1—Claims against the
State.
Where a person has a claim against
the State, that claim may be
enforced as of right by
proceedings taken against the
State for that purpose without the
grant of a fiat or the use of the
process known as petition of
right.
Section 2—Liability of the state
in Contract.
Subject to the provisions of this
Act, the liability of the State is
the same as that of a private
person of full age and capacity in
respect of—
(a) claims arising out of any
express or implied contract with
the State;
(b) claims for liquidated or
unliquidated damages in cases not
arising in tort; and
(c) claims for the recovery of
taxes or duties wrongly paid or
over-paid.
Section 3—Liability of the state
in Tort.
(1) The State is subject to all
those liabilities in tort to
which, if it were a private
person of full age and capacity,
it would be subject, in respect
of—
(a) torts committed by its
employee or agent while acting
within the scope of his office or
employment;
(b) a breach of duty which a
person owes to his employee or
agent at common law or under any
other law by reason of being his
employer; and
(c) a breach of the duty at common
law or under any other law
attached to the ownership,
occupation, possession or control
of property.
(2) No proceedings shall lie
against the State by virtue of
paragraph (a) of subsection (1) of
this section in respect of an act
or omission of an employee or
agent of the State unless the act
or omission would, apart from this
section, have given rise to a
cause of action in tort against
that employee or his estate.
(3) Where the State is bound by a
statutory duty which is binding
also upon persons other than the
State and its officers, the State
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 State were a private person of
full age and capacity.
(4) Where functions are conferred
or imposed on an officer of State
as such officer either by a rule
of the common law or by statute
and that officer commits tort
while performing or purporting to
perform those functions, the
liabilities of the State in
respect of the tort shall be what
they would have been if the
functions had been conferred or
imposed solely by virtue of
instructions lawfully given by the
State.
Section 4—Non-liability of State.
(1) No proceedings shall lie
against the State under this Act
in respect of—
(a) anything done or omitted to be
done by any person while
discharging or purporting to
discharge responsibilities of a
judicial nature vested in him; or
(b) any act, neglect or default of
an officer of the State unless
that officer—
(i)
has been directly or indirectly
appointed by the State and was, at
the material time, paid in respect
of his duties as an officer of the
State wholly out of public funds
or out of moneys provided by
Parliament; or
(ii) was, at the material time,
holding an office in respect of
which the Public Services
Commission certifies that the
holder of that office would
normally be so paid.
Section 5—Application of Law
Relating to Indemnity.
Where the State is subject to
liability by virtue of this Act,
the law relating to indemnity and
contribution shall be enforceable—
(a) against the State by an
employee of the State who is
acting in the proper execution of
his duties in respect of the
liability or by any other person
in respect of the liability to
which that person is subject; or
(b) by the State against any
person other than an employee of
the State, in respect of the
liability to which it is subject,
as if the State were a private
person of full age and capacity.
Section 6—Provision as to
Intellectual or Industrial
Property.
Where an employee or agent of the
State infringes a patent, a
registered trademark or a
copyright and the infringement is
committed under the authority of
the State, then, subject to this
Act, civil proceedings in respect
of the infringement shall lie
against the State.
Section 7—Provisions Relating To
The Armed Forces.
(1) Subject to subsection (2) of
this section, nothing done or
omitted to be done by a member of
the Armed Forces while on duty
shall subject the member or the
State to liability in tort for
causing death or personal injury
where the death or injury is to
another member of the Armed Forces
if—
(a) at the time when the death or
injury is suffered by that other
person he is either on duty as a
member of the Armed Forces or
though not on duty, he is on any
land, ship, aircraft, or vehicle
for the time being used for the
purpose of the Armed Forces; and
(b) the Minister responsible for
Defence certifies that the death
or injury is attributable to
service for the entitlement of an
award under any law relating to
the grant of awards to members of
the Armed Forces for disablement
or death.
(2) Subsection (1) of this section
shall not exempt a member of the
Armed Forces from liability in
tort in any action in which the
court is satisfied that the act or
omission was not connected with
the execution of his duties as a
member of the Armed Forces.
(3) No proceedings in tort shall
lie against the State for death or
personal injury due to anything
suffered by a member of the Armed
Forces where—
(a) the death or personal injury
is suffered by the member in
consequence of the nature or
condition of any land, ship,
aircraft or vehicle or in
consequence of the nature or
condition of any equipment or
supplies used for the purposes of
those forces; and
(b) the Minister responsible for
Defence certifies as provided
under paragraph (b) of subsection
(1) of this section.
(4) No act or omission of any
public servant shall subject the
public servant to liability in
tort for death or personal injury,
to a member of the Armed Forces in
circumstances where paragraphs (a)
and (b) of subsection (3) of this
section apply.
(5) Where the Minister responsible
for Defence is satisfied that—
(a) a person was or was not on any
particular occasion on duty as a
member of the Armed Forces; or
(b) at any particular time any
land, premises, ship, aircraft,
vehicle, equipment or supply was
or was not used for the purposes
of the Armed Forces, he may issue
a certificate to that effect and
the certificate shall, for the
purpose of this section, be prima
facie evidence as to the fact it
certifies.
Section 8—Civil Proceedings by or
Against the State to be in
Accordance with Rules of Court.
Civil proceedings by or against
the State shall as far as is
practicable be instituted and
proceeded with in a court of
competent jurisdiction in
accordance with the rules of the
court applicable to proceedings
between private persons.
Section 9—Parties to Proceedings.
(1) Civil proceedings by the State
shall be instituted and conducted
by the Attorney-General or any
person authorised by him.
(2) Civil proceedings against the
State shall be instituted against
the Attorney-General as defendant.
(3) No proceedings instituted in
accordance with this Act by or
against the Attorney-General or
any other officer shall abate or
be affected by any change in the
person holding the office.
Section 10—Notice of Civil Action
to Attorney-General.
(1) Subject to the provisions of
this Act, a person who intends to
institute civil action against the
State shall serve on the
Attorney-General a written notice
of his intention at least 30 days
before the commencement of the
action.
(2) The notice under subsection
(1) shall be served by the
claimant or by his lawyer or
agent—
(a) on the Attorney-General or an
officer of the Attorney-General's
Department; or
(b) in a case where action is to
be commenced in a region, on an
officer of the Attorney-General's
Department in the region
concerned.
(3) The notice shall state the
cause of action, the name and
address of the intended claimant
and the relief sought.
Section 11—Interpleader.
The State may obtain relief by way
of interpleader proceedings and
may be made a party to those
proceedings in the same manner in
which a private person may obtain
relief by way of those proceedings
or may be made a party and the
rules of court relating to
interpleader proceedings shall,
subject to the provisions of this
Act, apply.
Section 12—Service of Documents.
Documents required to be served on
the State for the purpose of or in
connection with civil proceedings
by or against the State shall be
delivered at the office of the
Attorney-General or to a
representative of the
Attorney-General in any part of
the country or to any officer
specified under any law.
Section 13—Nature of Relief
against the State.
In any civil proceedings by or
against the State, the court
shall, subject to this Act, have
power to make such orders as it
has power to make in proceedings
between private persons and may
give such relief as the case may
require.
Section 14—Appeals and stay of
Execution.
Subject to this Act, enactments
and rules of court relating to
appeals and stay of execution
shall with such modifications as
may be necessary apply to civil
proceedings by or against the
State as they apply to proceedings
between private persons.
Section 15—Satisfaction of Orders.
(1) Where in any civil proceedings
by or against the State or in
connection with any arbitration to
which the State is a party, an
order including an order for costs
is made by a court in favour of
any person against—
(a) the State;
(b) a department of the State; or
(c) an employee of the State,
the court shall issue to the
person a certificate containing
particulars of the order on an
application made by or on behalf
of the person at any time after
the expiration of twenty-one days
from the date of the order or
where the order provides for the
payment of costs and the costs are
required to be taxed, at any time
after the costs have been taxed,
whichever is later.
(2) A copy of a certificate issued
under this section may be served
by or on behalf of the person in
whose favour the certificate is
made—
(a) on the Accountant-General if
the certificate contains an order
for the payment of money; and
(b) on the Attorney-General in any
case.
(3) If the order provides for the
payment of any money, the
certificate shall state the amount
payable and the amount together
with any interest on it shall be
paid to the person entitled or to
his lawyer.
Section 16— Enforcement of Orders.
Subject to this Act, any order
made in favour of the State
against any person in any civil
proceedings to which the State is
a party may be enforced in the
same manner as an order made in an
action between private persons.
Section 17—Attachment of Money.
(1) Where any money is payable by
the State to a person who is under
a court order to pay money to
another person, that latter person
is entitled to obtain an order for
the attachment of the money as a
debt due or accrued under the
rules of court to him.
(2) The court may, subject to this
Act and in accordance with the
rules of court, make an order
restraining a person to whom the
State is liable to pay money from
receiving that money and directing
payment of it to any other person.
(3) No court shall make an order
under subsection (2) of this
section in respect of—
(a) any wages or salary payable to
an employee of the State; or
(b) pension or social security; or
(c) any money which by the
provisions of any enactment, is
prohibited or restricted from
attachment for the execution of a
debt.
Section 18—Discovery and
Interrogatories.
(1) Subject to subsections (2) and
(4) of this section, enactments
relating to the discovery and
production of documents and
answering interrogatories by an
order of a court shall apply to
civil proceedings by or against
the State to the same extent and
in the same manner as the
enactments apply to civil
proceedings between private
persons.
(2) Subsection (1) of this section
applies without limiting the right
to withhold any document or refuse
to answer any question on the
ground that disclosing the
document or answering the question
would be injurious to the public
interest.
(3) Any order of a court related
to answering interrogatories shall
direct which person is to answer
the interrogatories.
(4) A certificate from the Supreme
Court that it is satisfied that
the disclosure of a document is
injurious to the public interest
shall be conclusive evidence for
the purposes of this section.
Section 19—Notice of Proceedings
in Rem Against the State.
No proceedings in rem shall be
brought in respect of any claim
against the State, or the arrest,
detention or sale of any ship,
aircraft, cargo or other property
belonging to the State or give to
any person a lien on the aircraft,
cargo or other property unless
there has been served on the
Attorney-General a written notice
of intention to bring the action
at least 30 days before the
commencement of the action.
Section 20— Exceptions to Giving
Notice of Action.
(1) The notice before institution
of civil action against the State
does not apply to—
(a) an action to invoke the
original jurisdiction of the
Supreme Court under articles 2
(1) and 130 (1) of the
Constitution; and
(b) an action where a person
alleges that a provision of the
Constitution on the fundamental
human rights and freedoms has
been, or is being or is likely to
be contravened in relation to him
under article 33 (1) of the
Constitution.
(2) Where in any action against
the State there is failure to give
the notice required to the
Attorney-General, the court before
which the action is instituted
shall not dismiss the action but
direct the plaintiff to give the
Attorney-General the requisite
notice and adjourn the case
accordingly.
Section 21—Application of certain
Enactments.
This Act shall not limit the right
of the State to take advantage of
the provisions of any enactment
although not named in it and in
any civil proceedings against the
State, the provisions of any
enactment may be relied upon by
the State subject to any express
provision to the contrary.
Section 22—Costs in Proceeding.
(1) In any civil proceedings to
which the State is a party, costs
including those incidental to the
proceedings shall be at the
discretion of the court or
arbitrator and the discretion
shall be exercised in the same
manner and on the same principles
as in cases between private
persons except that—
(a) in the case of proceedings to
which the State is required to be
made a party, the court or
arbitrator shall have regard to
the nature of the proceedings and
the character and circumstances in
which the State appears as a party
and may in the exercise of its or
his discretion order any other
party to the proceedings to pay
the costs of the State whatever
may be the result of the
proceedings; and
(b) nothing in this section shall
affect—
(i)
the power of the court or
arbitrator to order the payment of
costs out of any particular fund
or property; or
(ii) any enactment providing for
the payment.
Section 23—Rules of Court.
Notwithstanding section 8 of this
Act the Rules Committee may where
it considers it necessary make
such modification as may be
necessary to any rules of court in
respect of proceedings by or
against the State.
Section 24— Non-Application of
Act.
Except as otherwise expressly
provided, nothing in this Act
shall—
(a) apply to criminal proceedings;
or
(b) subject the State to any
greater liabilities in respect of
the acts or omissions of an
independent contractor employed by
the State other than those to
which a private person would be
subject in respect of any acts or
omissions.
Section 25—Pending Proceedings.
(1) This Act shall not affect
proceedings commenced before the
coming into force of this Act and
for the purposes of this section
proceedings shall be regarded as
commenced if the statement of
claim has been delivered at the
office of the Attorney-General or
some other authorised officer
before the coming into force of
this Act.
(2) Proceedings commenced before
the coming into force of this Act
may be continued and concluded
under the law under which they
were commenced.
Section 26— Interpretation.
In this Act, unless the context
otherwise requires—
“agent” when used in relation to
the State includes an independent
contractor employed by the
Republic;
"Armed Forces" means the Army, the
Navy and the Air Force;
“civil proceedings” includes
proceedings for the recovery of
fines or penalties;
“employee” in relation to the
State, includes any public
officer, a member of the Armed
Forces, but not an employee of a
public corporation set up for
commercial purpose notwithstanding
any provision to the contrary in
this section;
“private person” means an
individual person of 21 years or
above and of sound mind;
“proceedings against the State”
includes a claim by way of set-off
or counterclaim raised in
proceedings by the State;
“public officer” means a person
who holds a public office the
emoluments attached to which are
paid directly from the
Consolidated Funds or directly out
of moneys provided by Parliament
and an office in a public funds or
moneys provided by Parliament;
“Minister” means the
Attorney-General and Minister for
Justice;
“State” means the Republic of
Ghana.
Section 27—Repeals.
The following enactments are by
this section repealed—
(a) The State Proceedings Act,
1961 (Act 51);
(b) The State Proceedings
(Amendment) Decree, 1969
(N.L.C.D.352);
(c) The State Proceedings Decree,
1972 (N.R.C.D.59);
(d) Statutory Corporations Act,
(Amendment) Decree, 1972 (N.R.C.D.
120)
Date of Gazette Notification: 4th
September, 1998.
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