PASSER v. ATTORNEY-GENERAL [1971] 1 GLR 439
26 March 1971 · ABBAN J · ≈ 4 min read
[1971] SLR (HC) 97Other citation styles and permanent link
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DIVISION: IN THE HIGH COURT, ACCRA
DATE: 26 MARCH 1971
BEFORE: ABBAN J.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTIONS to an action against the Republic for damages for breach of contract, delivery of eight vessels or £G400,000 being their value and interest on the said amount.
COUNSEL
J. B. Quashie-Idun (J. Quashie-Idun with him) for the plaintiff.
Dr. S. K. B. Asante, Solicitor-General (N. M. C. Dodoo, Principal State Attorney, with him), for the defendant.
JUDGMENT OF ABBAN J.
When the plaintiff was about to open his case, the learned Solicitor-General, appearing for the defendant raised two interesting preliminary objections. He contended that the proceedings herein, being proceedings in rem, are caught by section 19 (1) of the State Proceedings Act, 1961 (Act 51), which bars such proceedings against the Republic. His second objection was that even if these proceedings are not barred by section 19 (1) of Act 51, and therefore the court can hear the case, the reliefs being sought by the plaintiff in this action are reliefs which the court has no power to grant because the court is precluded from giving such remedies by section 13 (1) (a) and (b) of the said State Proceedings Act, 1961 (Act 51). Counsel for the plaintiff contended otherwise.
From the arguments of counsel, two issues have emerged for consideration. First, whether the proceedings herein are proceedings in rem and if they are, whether this court has jurisdiction to entertain the action in view of section 19 (1) of the State Proceedings Act, 1961 (Act 51). Secondly, whether the court has power to grant an order for specific performance of a contract or for the delivery of property as being claimed by the plaintiff, having regard to section 13 (1) of Act 51.
For the sake of convenience, I will deal first with the objection raised under section 13 (1) of Act 51. The plaintiff is claiming three reliefs, namely, damages for breach of contract, the delivery of the eight trawlers or £G400,000 being the value of the trawlers and interest on the said amount. On the true construction of section 13 (1) (a) and (b), I agree
[p.441] of [1971] 1 GLR 439 with the learned Solicitor-General that this court has no power to make an order for the delivery of the vessels or for specific performance of the contract. So far as the trawlers are concerned, the best that the plaintiff can hope for is a bare declaration of his right in respect of those trawlers and probably damages, if he succeeds in proving breach of contract. But the vessels cannot be ordered to be delivered to him. However, since a declaratory judgment can be given in lieu of an order for delivery of the trawlers, and since the claim for damages is a relief which is not barred by section 13 (1) (a) and (b) of Act 51 I am of the opinion that the action itself is not open to objection.
I now come to the objection raised under section 19 (1) of Act 51, that is, whether the present proceedings are proceedings in rem. Normally, proceedings in rem are those in which the action is directed against the res, such as a ship; and looking at the form and the procedure adopted in this particular case, I am not convinced that the proceedings herein are proceedings in rem. From the way this present action was begun, that is, by ordinary writ, and the fact that the writ was not directed against the corpus of the trawlers, I am inclined to agree with counsel for the plaintiff that these proceedings are not proceedings in rem. If an action is likely to result in a judgment in rem, it does not necessarily follow that the proceedings in connection with that action are proceedings in rem. For example, “a grant of probate or administration, and a decree in a matrimonial suit are judgments in rem, directly determining the status of property or persons, though the proceedings in which they are given are in form proceedings in personam.” See Halsbury’s Laws of England (3rd ed.), Vol. 1, para. 72 at p. 36 . The action herein arose out of a contract with the Republic and it is maintainable under section 2 (a) of the State Proceedings Act, 1961. I am therefore of the view that the proceedings herein are proceedings in personam. The fact that a declaration of a sort is likely to be made after the trial, and which declaration is likely to be classified as a judgment in rem, cannot by itself convert the proceedings which are clearly in personam to that of proceedings in rem. The objections are therefore overruled. Case to be heard on its merits.
DECISION
Preliminary objections overruled.
T. G. K.
