MINISTRY OF HEALTH AND OTHERS vs. ANNAN AND OTHERS [2001-2002] 1 GLR 527

MINISTRY OF HEALTH AND OTHERS v ANNAN AND OTHERS

[2001-2002] 1 GLR 527

Division: HIGH COURT, SEKONDI

Date: 9 MARCH 2001

Before: ASIAMAH J

Practice and procedure—Execution—Execution against government—Constitution removing any restriction on individual’s right to seek justice in court—Whether respondents can execute judgment debt against state without prior notice to Attorney-General—State Proceedings Act, 1961 (Act 51)—State Proceedings Act (Amendment) Decree, 1969 (NLCD 352)—Constitution, 1979, art 211(1)—Constitution, 1992, arts 17(1) and 293(1).

The respondents, all former employees of the first applicant, the Ministry of Health, were retrenched by the government in May 1994. Subsequently, the respondents obtained judgment against the applicants for the total judgment debt of ¢368,327,537.96. Thereafter, the applicants made several unsuccessful attempts to get the judgment sum reviewed or execution stayed. In the present application, the applicants filed a motion on notice to halt the execution of the judgment by the respondents on the ground that the judgment was statute-barred and plagued with irregularities. Counsel for the applicants contended that being state institutions, and the respondents’ action having been commenced prior to the enactment of the new State Proceedings Act, 1998 (Act 555) the provisions of the old State Proceedings Act, 1961 (Act 51) as amended by the State Proceedings Act (Amendment) Decree, 1969 (NLCD 352) governed the post-trial processes of going into execution. Therefore, the respondents, not having complied with the provisions of section 15(4) of Act 51 which proscribed the execution of money judgments against the State except in accordance with the procedure provided under Act 51, could not go into execution.

Held, dismissing the application:

(1) although before the coming into being of the Constitution, 1979 a successful party to an action against the State or an agent of the State, like any of the applicants, could only go into execution against the State by first obtaining the Attorney-General’s fiat to do so or was required to give notice to the Attorney-General under the State Proceedings Act, 1961 (Act 51) as amended by the State Proceedings Act (Amendment) Decree, 1969 (NLCD 352) article 211(1) of the Constitution, 1979 which had been replicated in article 293(1) of the Constitution, 1992 changed the state of the law and abrogated any legal restrictions on an individual’s right to seek justice in the law courts Moreover, article 17(1) of the Constitution, 1992 provided for the equality of all persons before the law. Accordingly, both the

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requirement of giving notice as a procedural necessity and the process known as petition of right under Act 51 were obliterated because they were inconsistent with the Constitution. Therefore, the respondent-judgment-creditor, in the instant case, did not need the Attorney-General’s fiat or prior permission before going into execution against the State.

APPLICATION by the Ministry of Health and two other state institutions for stay of execution of a judgment in the sum of ¢368,327,537.96 awarded the respondents, former employees of the ministry on grounds that the respondents had not complied with the procedure for the execution of the judgment debt against the State under the State Proceedings Act, 1961 (Act 51) as amended by the State Proceedings Act (Amendment) Decree, 1969 (NLCD 352). The facts are sufficiently set out in the ruling.

G Y F Kpodo, Senior State Attorney for the applicants.

Ackah Gyasi for the respondents.

Asiamah J. On 16 February 2001 the applicants who are judgment debtors filed a motion on notice: “to halt the on-going process of going into execution against the State by the respondents as same is statute-barred and plagued with irregularities.”

The applicants are state institutions. The respondents were all former employees of the first applicant. They were retrenched by the government on or about 31 May 1994. Consequent upon their retrenchment the respondents successfully initiated an action against the defendants, agents of the Government of Ghana on 2 October 1996 and obtained judgment against the defendants for the total judgment sum of ¢368,327,537.96 inclusive of costs.

The applicants made several unsuccessful attempts to get the judgment sum reviewed or execution stayed. On 16 February 2001, the applicants discontinued their appeal lodged against a ruling of this court delivered on 10 November 2000 only to come back to court again seeking to stop the respondents from going into execution. The basis of the applicants’ present application is rested in their contention that the applicants being state institutions, and the respondents’ action having commenced on 2 October 1996 prior to the enactment of the new State Proceedings Act, 1998 (Act 555) the provisions of the old

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State Proceedings Act, 1961 (Act 51) governed the post-trial processes of going into execution. Under section 15(4) of Act 51, the learned counsel rightly argued that the respondents could not go into execution against the first applicant.

It is provided in Act 51, s 15(4) thus:

“(4) Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Republic of any such money or costs as afore-said, and no person shall be individually liable under any order for the payment by the Republic . . . of any such money or costs.”

Before the coming into being of the Constitution, 1979 a successful party to an action against the State or an agent of the State like any of the applicants in this action, could only go into execution against the State by first obtaining an Attorney-General’s fiat so to do. The Constitution, 1979, by its article 211(1), came to change the state of the law as regards execution against the State. The said article 211 of the Constitution, 1979 reads:

“211. (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.”

I am not unmindful of the fact that Act 51 was subsequently amended by the State Proceedings Act (Amendment) Decree, 1969 (NLCD 352) before the promulgation of the Constitution, 1979. The requirement of “notice” in NLCD 352 surely was in the nature of petition of right in so far as it curtailed the right of the individual, be it temporary, to institute an action against the government or its department or agent. Article 211(1) of the Constitution, 1979 abrogated any legal restrictions on an individual’s right to seek justice in the law courts. If Parliament in 1979 had intended to retain the procedural requirement of notice-giving as provided in Act 51, as amended by NLCD 352, it would have done so unequivocally.

It is pertinent to mention here that the Constitution, 1992, like its predecessor, rendered nugatory the requirement of notice-giving as a

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procedural necessity as it used to be within the context of NLCD 352. The two Constitutions, 1979 and 1992 wiped off the process known as petition of right. The principle of law which states that “when anything is forbidden, it is forbidden to do it directly or indirectly” is still firmly embedded in the jurisprudence of this country. In the Constitution, 1979, article 211(1) obliterated the requirement of obtaining the Attorney-General’s fiat and the giving of notice. There was a replica production of article 211(1) of the Constitution, 1979 in article 293 of the Constitution, 1992. There is the further or additional provision in article 17(1) of the Constitution, 1992 of the equality of all persons before the law. This is a restatement of the maxim “equality is equity.” The supreme law of the land (that is the Constitution, 1992) has re-emphasised humanity’s birth right. A subordinate legislation like Act 51 as amended by NLCD 352 cannot whittle away that right.

We have travelled thus far and the result of this circuitous adventure through the law has brought to light that no matter from what angle one views the previous Act 51, or the new Act 555 there is only one irresistible conclusion that one can legitimately come to and it is that to the extent that a portion of the subordinate legislative Act purports to nullify the letter and spirit of a provision in the Constitution, 1992 establishing a right, that portion of the subordinate legislation which is in conflict with the Constitution, 1992 becomes ineffectual in its operation and cannot be depended upon by a judgment debtor to successfully disentitle a successful party into taking legal process to consummate his victory.

A fortiori, under the Constitution, 1992 a judgment creditor going into execution against the State, ie the government, or a department of state does not need anybody’s fiat or prior permission before doing so. The applicants have since 2 October 1996 made dauntless attempts to get off the hook but it has been a lost cause. The application fails. I award ¢100,000 costs against the applicants.

Judgment for the respondents.

Costs awarded against the applicants.

AD