RULING
JOYCE BAMFORD-ADDO J.S.C.:
I have been privileged to read
in advance the ruling of my able
Brother Acquah JSC wherein he
has fully set out the facts and
correctly considered the
arguments and submission by both
parties to this suit. I entirely
agree with his reasoning and
conclusions so there is really
no need for me to repeat them as
well. The main issue here is
that instead of putting down the
Attorney General as the
Defendant in the suit in the
High Court, the Minister of Food
and Agriculture was mistakenly
set down. This mistake was not
raised at the High Court, which
court could have corrected the
said error under Order 5 rule
6(1) and (2) of the High Court
(Civil Procedure) Amendment
(No.2) Rules 1977 (L.I. 1129).
The Solicitor General who is an
officer of the Attorney General
however appeared for the
Attorney General and defended
the action throughout. He took
part in the whole proceeding
including submitting to judgment
for specific performance as
claimed in the writ. The then
presiding Judge Mrs. Akoto Bamfo
J. adjourned the case to enable
the parties to agree on the
issue of damages and costs as
agreed by the parties
themselves. After several
meetings the parties namely
Plaintiff Delta Foods Ltd. the
plaintiffs and the
representative of the Attorney
General appeared before Nana
Gyamera-Tawiah J with the terms
of settlement. The said Judge
entered judgment in terms of the
settlement on 15th October 1998.
This is the consent judgment
which the Attorney General seeks
in his application for
certiorari to quash on the
ground that the name of the
Minister of Agriculture was used
in the writ as Defendant instead
of that of the Attorney-General
and therefore that the consent
judgment was "void and of no
effect." Article 88(5) of the
1992 Constitution states that:
"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"
The rational of this Article
namely to institute civil
proceedings against the
Attorney-General was to ensure
that the Attorney-General
conducted the defence in all
civil cases against the state,
he really is the nominal
Defendant. The
Attorney-General's
representative the
Solicitor-General did in fact
conduct the defence thus
satisfying the objective in
Article 88(5) therefore the
mistake in not using his name as
nominal defendant was in effect
only a technicality, which could
be rectified without affecting
the real substance of the case.
If the High Court can rectify
the said error by amendment,
this court also has that power.
See Article 129(4) of the
Constitution. In order to
determine the real issue in
controversy between the proper
parties the necessary amendment
to the title of the case should
be made in suit No.495/98 by
substituting the Attorney
General in place of Minister of
Agriculture as Defendant.
See the Supreme Court Case of
E.T.S. Issoafou vs. the Ghana
Ports and Harbours Authority
C.A. No.5/92 dated 7th December
1993. Except for this amendment
I would also dismiss the
application for certiorari.
JOYCE BAMFORD-ADDO, J.S.C.
AMPIAH J.S.C:
Upon the whole I agree with my
brother Acquah that the
application be refused.
The applicant complains of the
failure of the respondent to
make him the defendant in the
action. He contends therefore
that the whole action before the
High Court was null and void as
the Court in the circumstances
lacked jurisdiction to
adjudicate on the matter.
Article 88 (3) of the
Constitution requires that civil
proceedings against the State
should be instituted against the
Attorney-General as the
principal legal adviser to the
Government, though section 10
(2) of the State Proceedings
Act, 1961 (Act 51) makes it
permissive only. There is
therefore little doubt that in
the said action the
Attorney-General was a necessary
party. I do not think however
that the mere fact that he was
not made a party takes away the
Court's jurisdiction in the
matter. The contract which gave
rise to the plaintiff's claim
was entered into with the
Minister for Food and
Agriculture, an organ of the
State and for that matter an
agent of the Government. This
was done with the knowledge and
approval of the
Attorney-General. I cannot
imagine a situation where the
Attorney-General, the principal
legal adviser to the Government,
and the one against whom an
action should be brought when
there was a breach of the
contract would not be involved
in the contract!
Consequently, where there is a
breach of the contract, the
plaintiff may sue the defaulter
and the Attorney-General
together (in situations where
both the agent and the principal
may be sued jointly and
severally) or the defaulter or
the Attorney-General alone.
The Rules of Court provide that,
"No proceedings shall be
defeated by reason of the
misjoinder or non-joinder of any
party; and the Court may in any
proceedings determine the issues
or questions in dispute so far
as they affect the rights and
interests of the persons who are
parties to the proceedings" vide
the High Court (Civil Procedure)
(Amendment) (No.2) Rules, 1977
(LI 1129) Order 15 r 6(1)
And Rule 9(2) of the same Order
provides further that:
"(2) At any stage of the
proceedings, the Court may on
such terms as it thinks just and
either of its own motion or on
application.
(a) x x x x x x
x x x x
(b) Order any person who ought
to have been joined as a party,
or whose presence before the
Court is necessary to ensure
that all matters in dispute in
the proceedings may be
effectually and completely
determined and adjudicated upon,
to be added as a party".
(emphasis mine)
The Attorney-General is brought
in as a nominal defendant. In
the two cases, referred to by
counsel for the applicant,
namely, the Republic vrs.
Commissioner for Local
Government, etc. ex-parte Nii
Armah II (1975) 2 GLR 122 and
Buobuh vrs. Minister of Interior
(1973) 2 GLR 337 SC the Court
did not declare the proceedings
a nullity it only struck out the
names of the Government Organs
holding that the
Attorney-General was the proper
person to be sued. The
Attorney-General was retained in
the Buobuh case, in the words of
the Court, "as a Public Officer,
he merely represents the State
because the State cannot be
brought into the Court room in
flesh and bone".
In the instant case, the
defendant in the action disabled
the Court from making any order
regarding the representation of
the defendant in that case.
Having entered conditional
appearance, the defendant failed
to take any further steps on
that issue. Rather, he more or
less waived any protest he might
have made and fully participated
in the proceedings. It must be
understood that when the
Attorney-General is sued or is
suing he does so not in his
personal capacity but in his
official capacity. All those who
work in his office are his
servants or agents. From the on
set of the contract that
culminated in the action, the
Attorney-General or his
representative had been
involved. All those who had had
anything to do in the case had
come from the Attorney-General's
office as his representatives.
They had agreed that judgment in
default be entered against the
defendant and had taken part in
the settlement to determine the
damages to be awarded. In fact
the terms of settlement had been
signed by not only a
representative of the Ministry
of Food and Agriculture, but
also by a representative of the
Attorney-General, the applicant
herein.
It has been said that an
applicant who has waived his
right to object to a
jurisdictional defect may be
refused relief.
"The right to certiorari or
prohibition may be lost by
acquiescence or implied waiver.
Acquiescence means participating
in proceedings without taking
objection to the jurisdiction of
the tribunal once the facts
giving ground for raising the
objection are fully known — see
London Corporation vrs. Cox
(1867) LR 2 HL 239.
Certiorari, is in general, a
discretionary remedy and the
conduct of the applicant may be
such that would disentitle him
to a remedy. The applicant, save
objecting to the failure to
bring the action against him,
does not complain in any way
against the settlement in which
he has taken part. Even if his
request were acceded to, I do
not see what further evidence he
could have adduced to overturn
the consent judgment; if he had
some other evidence he has not
told the Court. The conduct of
the applicant is such that it
would be unjust to accede to his
request. It is upon these
grounds that I think the
application should fail.
In the particular circumstances
of the case, I would order that
the applicant be substituted for
the defendant in Suit No.
C495/98.
A.K.B. AMPIAH, J.S.C
ACQUAH J.S.C.:
In this application, the
Solicitor-General on behalf of
Attorney-General seeks an order
of certiorari to quash the
judgment and proceedings of
Gyamera-Tawiah J in Suit No.
C495/98 titled Delta Foods Ltd.
vrs The Minister of Food and
Agriculture. The grounds for the
application are stated as error
of law on the face of the
record, and lack of jurisdiction
for non-compliance with
statutory and constitutional
provisions. The thrust of the
Solicitor-General's submission
is that since the suit was an
action against the State, the
Attorney-General and not the
Minister of Food and Agriculture
ought to have been made the
defendant. Therefore in so far
as the Minister of Food and
Agriculture was made the
defendant there was no defendant
before the High Court and
consequently the resulting
judgment and proceedings of Nana
Gyamera-Tawiah J were a nullity.
For a fuller appreciation of
this opinion, it is important to
relate the facts of this case.
In 1997, Delta Foods Limited
(hereinafter called "Delta") a
limited liability company
incorporated in this country
imported into Ghana 420,000 mini
bags of white maize weighing 50
kilograms per bag, and 21,000
metric tons in all. On 14th
August 1997 Delta wrote to the
Minister of Food and Agriculture
(referred hereafter as the
"Minister") offering to sell the
consignment to that Ministry.
This letter, signed by the
General Manager of Delta, reads:
"Dear Sir,
re: Purchase of 21,000 Metric
Tons of US No. 2 White Maize
from Delta Foods Ltd. for Buffer
Stock
Reference our numerous
discussions on the above
mentioned issue and your
subsequent approval of granting
us the permission to import US
No.2 White Maize to mitigate
food shortage, we are happy to
offer you 21000 metric tons US
No.2 White maize a product of
United States of America for
purchase.
We here confirm our ex-warehouse
price at ¢39,500.00 (Thirty nine
thousand, five hundred cedis)
per bag of 50 kilograms. We have
in advance sent a similar offer
to the Vice president.
This offer remains valid for a
period of six (6) months in
which we expect to get full
confirmation of acceptance. In
event of failure to confirm we
reserve the right of
re-exporting the maize to the
neighbouring countries without
notice to you.
Yours faithfully,
(Sgd.) General Manager"
The Chief Director of the
Ministry of Agriculture, in a
letter dated 29th September,
1997 replied thus:
"Re: Purchase of 21000 metric
tons of White Maize
from Delta Foods Ltd. for Buffer
Stock
This is to acknowledge receipt
of your letter dated 14th August
1997 offering the Ministry of
Food and Agriculture 420,000
mini bags of white maize (21,000
Mt) for use as buffer stock.
The purpose of this letter is to
indicate that the Ministry has
accepted the offer in principle
and is currently in consultation
with the Office of the Vice
President, the Ministry of
Finance and the Central Bank for
the release of the necessary
funds to purchase the entire
stock.
Counting on your usual
co-operation and understanding.
(Sgd.) Chief Director
cc: Hon. Minister of Finance
The Governor, Bank of
Ghana"
Thereafter, the Minister and
officials from the Ministry of
Food and Agriculture visited the
warehouse of Delta where the
stock of white maize was
stocked, conducted an inspection
of the stock, took away some 20
bags of the white maize for
testing, after which the
minister himself wrote a letter
dated 28th January, 1998
re-confirming his Ministry's
intention to purchase the entire
stock. The letter reads:
"Dear Sir,
re: The Status of the 21000 MT
of White Maize offered to the
Ministry of Food and Agriculture
We are happy to once again
re-confirm our intention to
purchase the entire consignment
of 21,000 metric tons of white
maize imported into the country
by your esteemed company Delta
Food Limited.
As I indicated when I visited
your premises to inspect the
maize, all efforts are being
made to effect payment as soon
as possible.
We look forward to fruitful
co-operation in ensuring the
food security of Ghana in
particular and West Africa in
general.
Counting on your understanding
and co-operation.
(Sgd.) Hon. Minister of Food and
Agriculture
(Kwabena Adjei) DR"
The above letter clearly
indicated that the Minister
himself had inspected the stock
of maize and promised to raise
money to effect payment. On 10th
March 1998 when nothing was
forthcoming, Delta wrote to the
Minister referring to his letter
of 28th January 1998 and
inquiring when payment should be
expected, and also pointing out
the problems created by the
delay in executing the contract.
After waiting in vain for a
further three months, Delta
commenced legal proceedings on
30th July 1998 against the
Minister.
The claim sought by Delta were
for:
1. Specific performance of a
contract for the sale of 420000
mini bags, each weighing 50 kg
of a total weight of 21000
metric tons of white maize at
¢39,500 per bag making a total
of ¢16,590 million contained in
an exchange of correspondence
dated 14th August 1997, 29th
September 1997 and 20th January
1998.
2. Damages for breach of the
said contract.
When the Minister was served
with the writ and its
accompanying Statement of Claim,
he referred same to the
Attorney-General's office. And a
conditional appearance was
entered on behalf of the
Minister by a chief State
Attorney acting for the
Solicitor General. After the
expiration of 14 days when the
Solicitor-General had taken no
action in pursuance of the entry
of conditional appearance,
summons for summary judgment was
filed and duly served on the
Solicitor-General. No affidavit
in opposition was filed on
behalf of the Minister. At the
hearing of this summons for
summary judgment, the Minister
was represented by the Chief
State Attorney who signed the
entry of appearance. This Chief
State Attorney indicate to the
Court, presided over by Mrs.
Akoto-Bamfo J that the Minister
had no defence to the action and
that he had been instructed to
submit to judgment for specific
performance as claimed in the
writ. He further stated that the
question of damages would have
to be discussed by the parties.
Accordingly, the learned judge
entered judgment for specific
performance of the sale
agreement in respect of the
21000 metric tonnes of white
maize and adjourned the matter
to enable the parties to hold
discussions on the issue of
damages and cost as already
agreed.
The parties and their lawyers
duly held three meetings on the
18th, 23rd and 25th September
1998 in the offices of the
Ministry of Food and Agriculture
at which were present, a
representative of the
Attorney-General, and the
Secretary to the Bank of Ghana.
The meeting eventually reached
an agreement, which was set down
in writing as terms of
settlement, and was signed by
the parties and their lawyers.
Briefly, by these terms the
defendant was to pay Delta
twenty billion, three hundred
million cedis, the details of
which were spelt out, and
further to undertake to ensure
that should the question of
payment of import duty and or
sales tax or other Government
taxes, duties or imposts arise
thereafter in respect of the
importation into the Country and
sale of the said 420000 mini
bags of white maize by Delta,
responsibility for the same
should be assumed entirely by
the defendant and no liability
whatsoever should attach to
Delta in respect of same.
The terms of settlement were
filed, and on 15th October 1998,
the High court presided over by
Nana Gyamera-Tawiah J, entered
judgment in terms of the said
settlement. Indeed at the
entering of the said consent
judgment, the Minister was
represented in court by the same
Chief State Attorney. It is this
consent judgment of 15th October
1998 that the Attorney-General
now seeks in this application to
have quashed.
In his written submissions the
Solicitor-General points out
that in paragraph 2 of the
Statement of Claim in the Suit,
it was clearly averred that the
action was brought against the
Minister in his capacity as the
Minister responsible for Food
and Agriculture in the
Government of the Republic of
Ghana. He then argues that
ministers act for and on behalf
of the State in their official
transactions and therefore
whatever transaction the
minister entered into with Delta
by way of a contract could only
have been done for and on behalf
of the State. Thus ministers are
in law agents of the state, and
therefore by the elementary
principles of agency, it is the
principal, in this case the
State, which ought to be sued
and not the agent. Bowstead on
Agency 12th ed. Page 199 was
referred to. It was wrong
therefore for the action to have
been brought against the
minister and, the
Solicitor-General continues,
"Consequently jurisdiction was
assumed over the wrong party and
in so far as jurisdiction was
assumed over the wrong party the
Court lacked jurisdiction to go
through the process it went
through. And if judgment has
been pronounced that judgment is
void and of no effect".
Next since under section 10(2)
of the State Proceedings Act
1961 (Act 51) and Article 88(5)
of the 1992 Constitution, the
Attorney-General has been made
the nominal defendant for all
Civil proceedings against the
state, it was wrong and
unconstitutional for the
minister to have been made the
defendant. Relying on Republic
vrs. Commissioner for Local
Government and another ex part
Nii Amar II (1975) 2 GLR 122 at
126, and Buobuh vrs. Minister of
Interior & Anor. (1973) 2 GLR
304, he finally submitted that
the application for certiorari
should be granted.
In his response to the above
submission. Delta pointed out
that the Solicitor-General
represented the minister, right
from the inception of the suit,
and that he never raised any
objection to the alleged
incompetence of the ministers to
defend the action. Conceding
that the minister is an agent of
the State in a general sense, it
was submitted that where a
minister enters into a contract
to purchase goods for sale on a
purely commercial basis to the
public and does not purport to
be acting on behalf of the
state, the doctrine of "failing
out" does not apply and the
minister qua minister if not
jointly and severally, at least,
severally liable with the state
in case of a breach of the
contract. In such a situation
the liability of the state is
vicarious and not direct.
Relying on Bowstead and Reynolds
on Agency, 16th ed., pages 548
and 549, Montgomery vrs U.K.
Mutual S.S. Assn Ltd. (1891) 1
QB 370 at 371, and Yeung Kai
Young vrs. Hong Kong and
Shanghai Banking Corp. (1981) AC
787 at 797, it was contended
that the Minister could be sued.
In respect of the submission
based on Section 10(2) of Act 51
and Article 88(5), it was
contended that their action was
not against the state but a
servant of the State and
therefore those statutory
provisions were inapplicable. At
the hearing of this application,
Mr. Peter Adjetey, Counsel for
Delta submitted in the
alternative that should the
Court find that the
Attorney-General and not the
minister ought to have been made
the defendant, the court should
exercise its discretionary
powers and do substantial
justice on the facts and merits
so as to avoid a multiplicity of
suits. For he pointed out that
the issue raised is purely
technical.
Now there is no doubt that from
the provisions of the 1992
Constitution, particularly
Articles 76 and 78 thereof, a
minister be he cabinet or not,
is appointed to assist the
President in the running of the
State. And whichever sector of
the State that a minister is
assigned responsibility, that
minister is there as part of the
President's team responsible for
the efficient running of the
executive arm of the State. Thus
although a sector minister acts
for and on behalf of his sector,
that sector constitutes part of
the State. Thereby rendering the
State eventually liable for the
acts of that minister performed
within the course of that
minister's duties.
In the instant case, the
minister entered into the sale
transaction for and on behalf of
his sector ministry. And this
rendered the State eventually
liable for his actions. Indeed
the ministry did not conceal
from Delta the responsibility of
the State in providing funds for
the purchase of the 21000 metric
tonnes of white maize. For in
their letter of 29th September
1997 (quoted above) they made it
clear that they were:
“in consultation with the office
of the Vice President, the
Ministry of Finance and the
Central Bank for the release of
the necessary funds to purchase
the entire stock."
I therefore agree entirely with
the Solicitor-General that the
transaction here was entered
into for and on behalf of the
State through the Ministry of
Food and Agriculture, and that
liability for same rested on the
shoulders of the State.
Who then ought to have been sued
by Delta? The Minister as is the
case now, or the
Attorney-General as contended by
the Solicitor-General?
As stated earlier, the
Solicitor-General has two-fold
objections to the institution of
the action against the Minister.
The first, founded on the law of
agency, was that because the
Minister was an agent of the
state in the transaction,
"the action was instituted
against the wrong person and
consequently jurisdiction was
assumed over the wrong party and
in so far as jurisdiction was
assumed over the wrong party the
Court lacked jurisdiction to go
through the process it went
through. And if judgment has
been pronounced that judgment is
void and of no effect".
With respect, in so far as this
submission is founded on the law
of agency, it is misconceived.
The law of agency deals
primarily with the determination
of liability in a
principal-agent relationship.
The law does not determine the
jurisdiction of a Court. The
rules relating to the liability
of the agent to the third party
depend materially on the manner
in which the agent has
contracted, that is, as agent
for a disclosed principal, or as
agent for an undisclosed
principal or ostensibly as
principal. Thus where a person
is sued in respect of a
transaction he entered into as
an agent, and that person fails
to take steps to join his
principal in the suit, the
judgment of the Court cannot be
vitiated on grounds that the
defendant was an agent of a
principal who was not a party to
the suit. The absence of the
principal in the suit does not
amount to lack of jurisdiction
in the Court.
This suit was an action at the
High Court, and unless the said
agent has no legal personality
(that is, an infant, insane
etc.) the rules of court permit
the principal of the agent to be
joined to the action. For as
provided in Order 15 rule 6(1)
and (2) of High Court (civil
Procedure) (Amendment) (No.2)
Rules 1977 (L.I. 1129).
"6(1) No proceedings shall be
defeated by reason of the
misjoinder or non-joinder of any
party; and the Court may in any
proceedings determine the issues
or questions in dispute so far
as they affect the rights and
interest of the persons who are
parties to the proceedings.
(2) At any stage of the
proceedings, the Court may on
such terms as it thinks just and
either of its own motion or on
application—
(a) order any person who has
been improperly or unnecessarily
made a party or who has for any
reason ceased to be a proper or
necessary party to cease to be a
party
(b) Order any person who ought
to have been joined as a party,
or whose presence before the
court is necessary to ensure
that all matters in dispute in
the proceedings may be
effectually and completely
determined and adjudicated upon,
to be added as a party".
Thus if the pleadings or the
evidence disclose that the party
sued acted as an agent of a
principal, either of the parties
to the suit or the Court itself
has power under the above rule,
to bring in the principal. And
if this is not done, the Court
is nevertheless under an
obligation, in the language of
rule 6(1) of L.I. 1129 to
"determine the issues or
questions in dispute so far as
they affect the rights and
interests of "the agent sued.
The suing of the agent alone
never ousts the jurisdiction of
the Court. Thus the
Solicitor-General's first
submission based on agency is
totally untenable and indeed
flies in the face of Order 15
rule 6 of L.I. 1129.
The next objection is founded on
section 10(2) of Act 51 and
Article 88(5) of the 1992
Constitution. Section 10(2)
reads:
"Civil proceedings against the
Republic may be instituted
against the Attorney-General, or
any officer authorised in that
behalf by him or any officer
specified in that behalf under
any law for the time being in
force".
And Article 88(5) of the 1992
Constitution also provides:
"88(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".
Section 10(2) of Act 51 uses the
phrase "may be instituted" which
shows that a plaintiff has an
option to go either against the
Attorney-General or the
authorised office of the
particular State body. But then
Article 88(5) categorically
directs that the
Attorney-General, and no one
else, should be named the
defendant in all civil
proceedings against the State.
In the face of Article 88(5) of
the 1992 Constitution, it cannot
be doubted that suit No.
C495/98, being an action against
the State, the Attorney-General
and not the Minister ought to
have been made the defendant.
In this wise, the argument of
Delta that the Solicitor-General
was in the suit from its
inception and never raised any
objection to the Minister is
neither here nor there. Neither
can such failure on the part of
the Solicitor-General, estop him
from raising same if the statute
does not permit that act. For it
is trite knowledge that the
doctrine of estoppel cannot be
invoked to render valid an act
or transaction which a statute
forbids: See Brandshaw vs. Mc
Mullan (1920) 2 IR 412 at 425
HL; Tuffour vs. Attorney-General
(1980) GLR 637 at 656, Bilson
vs. Apaloo (1981) GLR 24 at
69-70; and N.P.P. vs. Electoral
Commission and Attorney-General
S.C. 16th September and 27th
October 1993.
Now the rationale for directing
that the Attorney-General should
be made the defendant in all
civil proceedings against the
State is quite evident from his
functions as set out in Article
88(1)and (5) of the 1992
Constitution, to wit, as the
principal legal adviser to the
Government and the body
responsible for the institution
and conduct of all civil cases
on behalf of the State. It is
therefore logical and prudent to
expect that for such functions,
the Attorney-General must be
aware and be made to undertake
the defence of all civil cases
against the State. Hence the
directive in Article 88(5) of
the 1992 Constitution. The
Attorney-General is made the
defendant in all civil cases
against the State not to assume
liability, but to be a nominal
defendant. Thus understood, the
failure to name the
Attorney-General as a defendant
in a suit where he ought to be
so named, should not, depending
upon the circumstances in each
case, be fatal, if amendment can
easily be effected to substitute
him for the 'wrong' defendant.
For as Kpegah J, as he then was,
aptly said in Francis Kuma vrs.
Elizabeth Bart-Plange (1989-90)
1 GLR 119 at 128:
“... it is the duty of every
court to ensure that in a given
situation justice is done.
Technicalities must not be
permitted to frustrate this
primary and all important
function of the court if only
the matter or decision lies
within the discretion of the
judge".
What is the given situation in
this case? From the facts as
outlined above it is clear and
undisputed that right from the
inception of suit No.C495/78,
the Solicitor-General entered
conditional appearance on behalf
of the minister. And that
although he had fourteen days
under the High Court procedural
rules to move the Court in
respect of his conditional
appearance he did not do so. The
conditional appearance thus
became unconditional by
operation of law after the 14
days time limit. Thereafter the
Solicitor-General, represented
by a chief State attorney
proceeded to be the solicitor
defending the minister
throughout the suit. Thus the
summons for summary judgment was
served on the Solicitor-General,
and his representative appeared
and submitted to judgment at the
hearing of that summons. Again
his representative was present
at the three out-of-court
meetings held at the offices of
the Ministry of food and
Agriculture to come to a
consensus on the damages and
cost to be awarded to Delta. And
when the terms of settlement
agreed at the said three days
meetings were filed and Nana
Gyamera-Tawiah J sat to enter
the said terms as consent
judgment of the Court, the
Solicitor-General's
representative was once more in
court as representing the
minister. He did not oppose it.
The record of what transpired on
that 15th October 1998 showed
that the Chief State Attorney
appeared with another lawyer of
the Attorney-General's
department to represent the
minister. Clearly then, the
rationale underlying the need to
have the Attorney-General named
as the defendant in all civil
actions against the state, is
satisfied in the instant
situation.
Secondly, it is also important
to observe, that two decisions
were delivered in the suit. The
first was the entering of
summary judgment by V.
Akoto-Bamfo (Mrs.) J on 2nd
September 1998, and that of Nana
Gyamera-Tawiah J on 15th October
1998. The Solicitor-General's
application for certiorari is
only in respect of the decision
of Nana Gyamera-Tawiah J. Why?
In both decisions, the minister
was the named defendant. The
request to quash one decision
and leave the other thus
punctuates the propriety of his
application. Thirdly, and this
is very important, the only
complaint of the
Solicitor-General in this
application is the failure to
name the Attorney-General as the
defendant in the suit. Indeed
the Solicitor-General's
representative conceded the
State's liability to the claim,
and thereafter took part in the
meetings, which agreed on the
terms of settlement constituting
the consent judgment of Nana
Gyamera-Tawiah J.
From the above observations what
would be the benefit of granting
the prayer of the
Solicitor-General? No useful
purpose at all! It would be a
futile grant that would neither
vitiate the liability of the
state as same was conceded to by
the Solicitor-General and
pronounced in the judgment of V.
Akoto-Bamfo J, nor advance the
course of justice in any way. It
would rather lead to unnecessary
multiplicity of suits.
It is indeed important to
appreciate that the prayer for
the grant of certiorari must be
considered from a very broad
perspective. For being a
discretionary remedy it must be
demonstrated that there is real
justification and benefit for
its grant. Accordingly where the
results of granting the order
achieves no real or just result,
the discretion is not exercised.
Thus in Halsbury's Laws of
England (3rd ed.) Vol. II, page
141 paragraph 266 it is stated:
"Where grounds are made out upon
which the Court might grant the
order, it will not do so where
no benefit could arise from
granting it".
See: R vrs. Newborough (1869) LR
4 QB 585 at 589; R vrs Bristol
and Exeter Rail Co. (1838) II Ad
& EI 202; R vrs. Lancaster &
Preston Rail (1845) 6 QB 759; R
vrs. Unwin (1839) 7 Dowl 578;
Peak Joint Planning Board vrs.
Secretary of State for
Environment (1980) 39 P & CR
361; and Rep. vrs. Agboka IV
(1984-86) 1 GLR 581 CA.
Indeed in Miller vrs. Weymouth
and Melcombe Regis Corporation
(1974) 27 P&CR 468 at 480-481,
the Court refused to quash a
void decision because the
applicant was in no way
prejudiced by the said decision.
Now by virtue of his involvement
as solicitor for the Minister,
and further participation even
in the out- of-court settlement,
Attorney-General was in no way
prejudiced by the mere use of
the minister as the defendant.
Neither did the decision of Nana
Gyamera-Tawiah J.
In the circumstances the
interest of justice dictate that
the proper course to take is to
amend by substituting the
Attorney-General for the
minister as defendant in suit
No. C495/98 so as to save the
proceedings and judgment
delivered herein. Especially as
such an amendment will not cause
any surprise, prejudice and
injustice to the
Attorney-General who was the
solicitor for the minister right
from the inception of the suit
to its conclusion: For as Bowen
LJ said in Cropper vrs. Smith
(1884) 26 Ch.D 700 at 710 CA:
"I know of no kind of error or
mistake which if not fraudulent
or intended to overreach, the
Court ought not to correct if it
can be done without injustice".
Of course, if the error is
fundamental or goes to the
jurisdiction of the Court in
that it exposes the Court's lack
of jurisdiction in the matter,
then the Court is incompetent to
correct the error. For a Court
has NO power to grant itself
jurisdiction or authority where
the statute creating it did not
vest it with that power. For
instance, if the Supreme Court
determines a civil appeal from
the Circuit Court, such an error
cannot be corrected to save the
judgment of the Supreme Court
since by statute the appeal
ought to have been determined by
the Court of Appeal. Or again if
a Court gives judgment against a
defendant who was never given
notice of, nor served with, the
writ of summons, the error
arising from lack of service or
notice of the writ cannot be
corrected to save that judgment.
In the circumstances of this
case, the error arising from the
use of the minister as the
nominal defendant instead of the
Attorney-General as demonstrated
above is neither fundamental nor
go to the jurisdiction of the
High Court.
Now has this Court power to
effect the necessary amendment?
First of all in the exercise of
our supervisory powers we are
entitled under Article 132 of
the 1992 Constitution and
section 5 of the Courts Act 1994
(Act 459 to issue such orders
and directions for the purpose
of enforcing or securing the
enforcement of our powers.
Secondly, we have general
jurisdiction under Article
129(4) of the 1992 Constitution,
in respect of any matter within
our jurisdiction, to exercise
all the powers, authority and
jurisdiction vested in the court
whose judgment or conduct is the
subject-matter of the suit
before us. The Article reads:
129(4)"For the purpose of
hearing and determining a matter
within its jurisdiction and the
amendment, execution or the
enforcement of a judgment or
order made on any matter, and
for the purposes of any other
authority, expressly or by
necessary implication given to
the Supreme Court by this
Constitution, the Supreme Court
shall have all the powers,
authority and jurisdiction
vested in any court established
by this Constitution or any
other law".
It is also established that
courts have power in fitting
situations and in the interest
of justice to amend the record
by substituting a new defendant
for the one sued. Thus in
Pealman (Veneers) S.A. (Pty)
Ltd. vrs. Bernhard Bartels
(1953) 3 All ER 659 CA where the
plaintiffs had obtained judgment
the Court held that there was
jurisdiction to amend the
proceedings including the
judgment to describe the
defendant as Josef Bartels,
trading as Bernhard Bartels. At
page 660, Lord Denning delivered
himself as follows:
"When the substantive judgment
is not being altered, but only
the title of the action, it is
to my mind quite plain that this
court has ample jurisdiction to
correct any misnomer or
misdescription at any time
whether before or after
judgment. All that is necessary
to be done, which this court has
ample power to do, is to alter
the title by describing the
defendant in the name he now
says is his correct name".
In the instant case, since
liability to the claim lies in
the State and not whoever is
named as the defendant, and that
whoever is so named only acts as
the nominal defendant, and that
was indeed what the minister
did, the substitution of the
Attorney-General for the
minister is more of a correction
in the description of the
nominal defendant than a change
of party. And if the
Attorney-General who defended
the suit for and on behalf of
the state, now says that his
name ought to be put down as the
defendant, no harm occurs by
acceding to such a request.
For it would be pursuing
technicalities to an absurdity
to hold that because the
minister and not the
Attorney-General was named the
defendant in the suit, the
judgment of nana Gyamera-Tawiah
J in which the Attorney-General
appeared for the defendant, is a
nullity. As Bowen LJ was quoted
to have told his American
colleagues (quotation found in
Potin vrs Wood (1962) 2 WLR 258
at 262), no honest litigant must
be
"defeated by any mere
technicality, any slip, any
mistaken step in his
litigation".
Accordingly I will refuse the
prayer of the Solicitor-General,
and on the peculiar facts of
this case and in the supreme
interest of justice, exercise my
powers under Article 129(4) of
the 1992 Constitution to effect
an amendment in the proceedings,
orders and judgments in suit No.
C494/98 by substituting the
Attorney-General for the
minister. Subject to this
amendment, the application for
certiorari is hereby dismissed.
G.K. ACQUAH, J.S.C
ATUGUBA J.S.C.:
I also agree that this
application fails subject to the
substitution of the
Attorney-General for the
Minister for Food and
Agriculture as the defendant,
but as the matter was
extensively argued by both sides
to this case I feel I should add
a few words of my own.
The crucial contentions of the
learned Solicitor-General on
behalf of the applicant are that
(1) the suit whence this
application stems was not
competently instituted in as
much as the same was mounted
against the Minister for Food
and Agriculture whom he says is
not a juristic person and (2)
the same ought, per force of
constitutional and ordinary
statutory provisions, to have
been instituted against the
Attorney-General.
However, in developing his
arguments, the learned
Solicitor-General contended that
the contract in this case having
been entered into by the said
Minister for Food and
Agriculture as agent for his
Principal, the State, the action
does not lie against the former.
If that is so then it is clear
that the contention that the
Minister is not a juristic
person founders, since to be an
agent one must be a legal
person. It is stated in Bowstead
on Agency, 14th edition, at page
20:
"All persons of sound mind,
including infants and other
persons with limited or no
capacity to contract on their
own behalf, are competent to act
or contract as agents".
(emphasis supplied).
Of course not all persons can
sue and be sued by themselves.
In any event, actions have long
been recognized to be against
public officers in either a
private capacity or an official
capacity, with different legal
consequences.
In BUOBUH V. MINISTER OF
INTERIOR (1973) 2 GLR 304 at 310
C.A Archer J.A (as he then was)
said: "The two actions against
the State on the one hand and
against public officers on the
other are different in various
respects. In Raleigh vrs.
Goschen [1898] 1 Ch. 73 at page
81 Romer J. put it this way:
“........ an action against the
defendants in their official
capacity, supposing it to lie,
would differ in most material
respects from an action against
them as individuals, as will be
seen when consideration is paid
to questions of discovery and to
the form of any interlocutory
injunction or final judgment
that could be obtained by the
plaintiffs, and as to how and
against whom such injunction or
judgment could be enforced."
(emphasis supplied).
It is also well established that
an action by or against a party
is not nullified unless the true
legal identity of the party in
question cannot be ascertained.
See GHANA INDUSTRIAL HOLDING
CORPORATION VRS. VINCENTA
PUBLICATIONS [1971] 2 GLR 24 C.A
which was followed and explained
in the terms I have just set
out, in MUSSEY VRS. DARKO [1977]
1 GLR 147 C.A., GHANA PORTS AND
HARBOURS AUTHORITY VRS. ISSOUFOU
[1991] 1 GLR 500 C.A, KIMON
COMPANIA NAVIERA S.A.R.P. VRS.
VOLTA LINES LTD. [1973] 1 GLR
140. In contrast is WADAD HADDAD
FISHERIES VRS. STATE INSURANCE
CORPORATION [1973] 1 GLR 501.
Mr. Ala Adjetey has contended
that the plaintiff's action was
not against the State but the
Minister and therefore, as I
understand him to be saying, the
necessity for instituting the
same against the
Attorney-General as provided by
section 10 (2) of the State
Proceedings Act, 1961 (Act 51)
and more particularly, article
88 (5) of the 1992 Constitution,
does not arise. For this
contention he relies on BUOBUH
VRS. MINISTER OF INTERIOR,
supra. But that authority, read
in the context of Raleigh vrs.
Goschen (1898) 1 ch. 73 which
was applied in that case, shows
that an action against a public
officer is said not to be an
action against the State, when
that action is brought against
the public officer in his
private, as opposed to his
official capacity, representing
the State. The facts of Raleigh
vrs. Goschen as stated in the
headnote are that:
"The Plaintiffs commenced an
action against the Lords of the
Admiralty with the object of
establishing as against them
that they were not entitled to
enter upon, or acquire by way of
compulsory purchase, certain
land, the property of the
plaintiffs, for the purpose of
erecting thereon a training
college for naval cadets, and
claiming damages for alleged
trespass and an injunction to
restrain further trespass."
It was "Held, that though the
plaintiffs could sue any of the
defendants individually for
trespass as committed or
threatened by them, they could
not sue them as an official
body, and that as the action was
a claim against the defendants
in the official capacity, it was
misconceived and would not lie;
........... (emphasis supplied)
At pages 80 - 81 of the report
Romer J said:
"Paragraph 12 alleges that the
defendants had entered upon some
portion of the plaintiffs'
estate and placed stakes there.
Now, it was admitted before me
on behalf of the plaintiffs that
it was not suggested, or
intended to be suggested, that
the defendants themselves had
done this. The paragraph shows
that in this action, when an act
of the defendants is referred
to, what is meant and intended
to be alleged is the act of the
defendants treated as an
official body — that is to say,
as a body representing the Crown
or Government or as responsible
for the acts of all officials or
persons acting or purporting to
act on behalf of the Crown, or
of the Government, or of the
Admiralty.
Then, all that is contained in
paragraph 17 is a general
allegation that the defendants
by their servants and agents
have trespassed and threatened
to trespass again. That refers
again, as I understand it, to
acts alleged against them as an
official body on the footing
above mentioned. But any
possible doubt as to what kind
of action this appears to me to
be set at rest by the plaintiffs
summons to amend their writ and
subsequent proceedings, and the
affidavits filed in support of
the summons. The affidavits
state that the alleged trespass
was committed by two marines
acting under the directions of
Mr. Shortridge, a civil engineer
employed in Her Majesty's
Dockyard at Devonport. Those
affidavits do not allege any
personal participation in the
alleged trespass or any threat
of further trespass by or by the
order or direction of any of the
defendants. Then the summons
asked for leave to amend the
action by suing the defendants
in their individual as well as
in their official capacity, and
by adding the two marines and
Mr. Shortridge as co-defendants.
In other words, the summons
proceeds on the footing that the
present action is one against
the present defendants in their
official capacity only; and I
think the plaintiffs' own view
as to their action is the
correct one.
It follows that, in my opinion,
the present action as it stands
is misconceived and will not
lie." (emphasis supplied). The
reasons why the action would not
lie in that case are summarised
by the finding that the
defendants were sued in their
official capacity, as
representing the crown.
The historical antecedents for
that legal position have been
amply stated by Archer J.A. (as
he then was) in BUOBUH VRS.
MINISTER OF INTERIOR, supra. In
short, the Crown could do no
wrong and therefore actions for
tort could not lie against the
Crown. Therefore, as I
understand the position, an
action against the defendants in
their official capacity, as
representing the Crown, was
tantamount to an action against
the Crown, which could not lie.
Similarly, in this case the
plaintiff, Delta Foods Limited,
made it clear in its writ and
pleadings that the action was
brought against the Minister for
Food and Agriculture in his
capacity as a Minister in the
Government of Ghana. He has
therefore been sued in his
official capacity - that is to
say, as an official representing
the State or Government. This is
made clear by article 78 (2) of
the 1992 Constitution, which
provides as follows:
"78 (2) The president shall
appoint such number of Ministers
of State as may be necessary for
the efficient running of the
State." (emphasis supplied).
In the discharge of his role as
Minister for Food and
Agriculture in "the efficient
running of the State," the said
Minister entered into the
contract for the sale of the
maize to the Ministry of Food
and Agriculture. It is therefore
clear that the suit against him
in that capacity presupposes
that his act was an act of state
and was therefore in substance
and effect an action against the
State.
Therefore the true defendant in
the plaintiff's action was the
State, though ostensibly, the
Minister for Food and
Agriculture was sued. In OHENE
VRS. PRINCIPAL SECRETARY,
MINISTRY OF FINANCE [1971] 1 GLR
102 as stated in the headnote:
"The plaintiff sought
declaration that a society
operating under section 9 (1)
and (2) of the Lotteries and
Betting Act, 1960 (Act 31), did
not require the permission of
the Ministry of Finance to
operate a lottery. A preliminary
objection was raised that the
defendant was not a proper party
to the suit, rather the action
should have been brought against
the Attorney-General."
Hayfron-Benjamin J as he then
was upheld the preliminary point
and under O. 16 r. 11 of the
High Court (Civil Procedure
Rules), substituted the
Attorney-General. It is clear,
however, that if
Hayfron-Benjamin J. (as he then
was), did not regard the suit
against the Principal Secretary
of the Ministry of Finance as
one against the Republic, he
would not have effected the
substitution for the
Attorney-General. Similarly in
ASIEDU-ADDO VRS. COMPTROLLER OF
CUSTOMS AND EXCISE (1981) GLR
505 Cecilia Koranteng-Addow J.
regarded the suit as one brought
against the Republic. At page
509 she said "Section 10 (2) of
Act 51 gives a discretion to a
prospective plaintiff to
institute a claim against the
Republic against the
Attorney-General. But in such a
case, the Attorney-General is
only a nominal defendant. Under
the provisions of section 10 of
Act 51, the Republic may not be
nominally made a party to
proceedings: the
Attorney-General may sue and be
sued in respect of proceedings
by or against the government."
(emphasis supplied).
Then at p.510 she added that:
"I must point out that the
comptroller is not sued in his
person as a tortfeasor of the
department. The Comptroller of
Customs represents the whole
department according to Cap 167,
so he stands in the same shoes
as the Attorney-General would
stand for the Republic."
(emphasis mine).
At page 511 she continued thus:
"The comptroller represents the
department; that department is a
department of the State; its
actions therefore are the
actions of the
Republic...........
An action against the Republic
remains the same whether the
Attorney-General is made nominal
defendant or the action is
brought against a State
department or an institution.
"(emphasis supplied).
Her Lordship therefore held that
even though the Attorney-General
was not joined to the suit, yet
the action being one against the
Republic, the statutory one
month's notice ought to have
been given to the
Attorney-General prior to the
commencement thereof. As this
was not done, she struck out the
suit.
The present action, therefore as
I said earlier on, is in
substance against the State
though in form it has been
brought against the Minister for
Food and Agriculture. Even if it
was brought against the
Attorney-General the real
defendant would still be the
State. By dint of article 88
(5), however, the suit could
only be instituted against the
Attorney-General, nominally.
Ought the substance to be
defeated by form? I should think
not. The substitution proposed
by my brother Acquah ensures
that the substance prevails and
I need not repeat the relevant
ordinary statutory and
constitutional provisions, which
he has already set out in his
judgment, in this regard.
The judgment of Francois J.A. as
he then was in MUSSEY VRS. DARKO,
supra, where he cited the
relevant English authorities,
shows that statutory provisions
apart, a court has inherent
jurisdiction to amend the title
of a suit or substitute a party
for another even after judgment,
not only where there is mere
misnomer or misdescription of a
party but where the ends of
justice in the particular case
require.
I think this is such a case and
that the present case bears very
striking similarities with
MERCER ALLOYS CORPORATION VRS.
ROLLS ROYCE LTD (1972) All E.R.
211, quoted with approval by
Francois J.A. as he then was in
the Mussey case. That was a case
in which the parties submitted
to a consent judgment in respect
of a very huge contractual
monetary claim, but the
defendants afterwards, realising
that one of the plaintiff
companies had lost its existence
through merger with another
company during the pendency of
the suit, sought to set aside
the judgment on the ground that
the said consent judgment was in
the circumstances null and void
and that substitution of the
real party could not be done
after judgment. The contention
was rejected and the
substitution was effected.
At page 218 of the Report,
Stephenson L.J said:
"Another objection to the
proposed substitution is simply
that it is a substitution, not
the mere correction of a
misnomer, as in Pearlman
(Veneers) SA (Pty) Ltd vrs.
Bartels, and a new party never
can be, or at least never ought
to be, added to a suit after
judgment, either under the
inherent jurisdiction of the
court or under RSC Order 15.
I see no reason why the court
should not have such
jurisdiction to substitute when
only by doing so can it do
justice. The cases in which such
jurisdiction should be exercised
must be rare, but the peculiar
facts of this case make it, in
my judgment, one of them.
Finally, it is said that we are
amending a nullity, something
which has never been done, and
cannot be done, under our
inherent jurisdiction or under
the rules. That may be logical,
but it is, in my judgment, quite
unreal. We are effecting the
true intention of all those
concerned in this case, as
expressed in the consent
judgment, to put an end to this
litigation- something I should
be sorry to think we had no
jurisdiction to do.” (emphasis
supplied).
This is exactly what the course
proposed by my brother Acquah
J.S.C. ensures in this case.
I concur in the same and,
subject to the said proposed
substitution, I would also
dismiss this application.
W.A. ATUGUBA, J.S.C.
AKUFFO, (MS), J.S.C.:
I am in full agreement with the
reasoning of my brother Acquah,
J.S.C. and will not add
anything.
SOPHIA AKUFFO, (MS) JSC
COUNSEL
Mr. Addo, Solicitor-General
appears with Mr. Avah, Chief
State Attorney and Mr. Anim
Chief State Attorney, for the
Attorney-General.
Mr. Peter Adjetey appears for
Interested Party, Delta Foods
Limited, with Mr. William Addo. |