OHENE v. PRINCIPAL SECRETARY, MINISTRY OF FINANCE [1971] 1 GLR 102

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 1 DECEMBER 1970

BEFORE: HAYFRON- BENJAMIN J.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION that the Principal Secretary, Ministry of Finance was not the proper party to a suit, brought against the Republic.

COUNSEL

E. N .Moore for the plaintiff.

N. M. C. Dodoo, Principal State Attorney, for the defendant.

JUDGMENT OF HAYFRON-BENJAMIN. J

The plaintiff by his writ of summons claims a declaration that a society operating under section 9 (1) and

(2) of the Lotteries and Betting Act, 1960 (Act 31), does not require the permission of the Ministry of Finance to operate a lottery. He claims in the alternative that the withdrawal of the society’s licence to operate a lottery under section 9 (1) and (2) of the Act is invalid as being contrary to article 173 of the Constitution 1969. The claims are being made against the Principal Secretary, Ministry of Finance. At the outset a preliminary point of practice and procedure has to be settled, and it is whether or not a principal secretary of a Ministry or more specifically, the Principal Secretary of the Ministry of Finance is a proper party to the suit.

Section 10 (2) of the State Proceedings Act, 1961 (Act 51), provides that: “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 [p.103] of [1971] 1 GLR 102 force,” Section 12 further provides that:

“All documents required to be served on the Republic for the purpose of or in connection with civil proceedings by or against the Republic shall be delivered at the office of the Attorney-General or to any officer specified in that behalf under any law for the time being in force.”

These provisions differ in wording from the relevant provisions of the United Kingdom Crown Proceedings Act, 1947 (10 & 11 Geo. 6, c. 44). That Act provides in section 17 (3) that: “Civil proceedings against the Crown shall be instituted against the appropriate authorised Government department, or, if none of the authorised Government departments is appropriate or the person instituting the proceedings has any reasonable doubt whether any and if so which of those departments is appropriate, against the Attorney-General.”

Subsection (1) of this same section of the Act imposes a duty on the treasury to publish a list specifying the several government departments which are authorised departments for the purpose of the Act. It is clear therefore that in the United Kingdom civil proceedings against the Crown can only be brought either against an authorised government department or the Attorney-General. The provisions are mandatory. In Ghana, however, Act 51 uses the word “may” which under the Interpretation Act, 1960 (C.A. 4), is not mandatory. This however does not absolve the court from its duty to enquire whether or not the body sought to be made a party has the requisite capacity, that is, whether the principal secretary or head of the department has been invested with the right to sue or be sued. He can attract this legal capacity if he has been authorised in that behalf by the Attorney-General or is specified in that behalf under any law for the time being in force. If any public officer can be sued on behalf of the Republic, the provision empowering the Attorney-General to authorise officers to defend such actions would be unnecessary. There would also be no need for the legislature to designate certain officers and empower them to sue and be sued on behalf of the Republic. “Officer” has not been defined in Act 51, but “servant” has been. The definition includes any public officer, a member of the Armed Forces and a minister. It is not necessary for the purposes of this Act to define which persons fall within the category of officers, but I hold that it must include all officers within the public service.

The Attorney-General has so far not published any list of persons with the requisite authority from him to resist claims brought against the Republic. There are certain statutes authorising certain heads of departments to sue and be sued on behalf of the Republic, e.g. those dealing with railways and harbours. The Principal Secretary, Ministry of Finance does not fall within this category and I must hold that he is not a proper party to a suit brought against the Republic.

[p.104] of [1971] 1 GLR 102

In the United Kingdom the Crown Proceedings Act, section 17 (4) provides that:

“Where any civil proceedings against the Crown are instituted against the Attorney-General, an application may at any stage of the proceedings be made to the court by or on behalf of the Attorney-General to have such of the authorised Government departments as may be specified in the application substituted for him as defendant to the proceedings; and where any such proceedings are brought against an authorised

Government department, an application may at any stage of the proceedings be made to the court on behalf of that department to have the Attorney-General or such of the authorised Government departments as may be specified in the application substituted for the applicant as the defendant to the proceedings.” Our State Proceedings Act does not contain similar provisions. However, under Order 16, r. 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), this court has the power either upon or without the application of either party to substitute a party as plaintiff or defendant on such terms as may seem just. I therefore order that the Attorney-General be substituted as the defendant in this matter and that the name of the Principal Secretary of the Ministry of Finance be struck out. The case to take its normal course.

DECISION

Preliminary objection upheld.

Attorney-General substituted for the defendant.

T. G. K.