REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE ATTORNEY-GENERAL (DELTA FOODS LTD., INTERESTED PARTY) [1999-2000] 1 GLR 255

CASES REFERRED TO

(1) Ghana Ports and Harbours Authority v lssoufou [1993-94] 1 GLR 24; [1992-93] 1 GBR 24, SC.

(2) Republic v Commissioner for Local Government; Exparte Nii Amar II [1975] 2 GLR 122.

(3) Buobuh v Minister of Interior [1973] 2 GLR 304, CA.

(4) London Corporation v Cox (1867) LR 2 HL 239.

(5) Delta Foods Ltd v Minister of Food and Agriculture, High Court, Accra, unreported. (6) Montegomerie v United Kingdom Mutual SS Association [1891] 1 QB 370.

(7) Yeung Kai Yung v Hong Kong and Shanghhai Banking Corp. [1981] AC 787, PC; [1980] 3 WLR 950; [1980] 2 All ER 599, DC.

(8) Brandshaw v McMullan (1920) 2 IR 412, HL.

(9) Tuffuor v Attorney-General [1980] GLR 637, CA sitting as SC.

(10) Bilson v Apaloo [1981] GLR 24, SC.

(11) New Fatriotic Party v Attorney-General [1993-94] 1 GLR 124; [1992-93] 1 GBR 4, SC. (12) Kuma v Bart-Plange [1989-90] 1 GLR 119.

(13) R v Newborough (1869) LR 4 QB 585; 10 B & S 586; 17 WR 861.

(14) R v Bistol and Exeter Railway Co (1838) 11 Ad & EI 2002, n; 2 Ry & Can Cas 99; 1 Per & Dav 170, n.

(15) R v Lancaster Preston Tailway Co (1845) 6 QB 759.

(16) R v Unwin (1939) 7 Dowl 578.

(17) Peak Joint Planning Board v Secretary of State for Environment (1980) 39 P & CR 361. (18) Republic v Agboka IV; Ex parte Deh III [1984-86] 1 GLR 581, CA..

(19) Miller v Weymouth & Metcombe Regis Corporation (1974) 27 P & CR 468.

(20) Cropper v Smith (1884) 26 ChD 700; 53 LJ Ch 891; 51 LT 729, CA.

[p.259] of [1999-2000] 1 GLR 255 (21) Pearlman (Venners) SA (Pty) v Bartels (Bernhard) [1954] 1 WLR 1457; [1954] 3 All ER 659; 98 SJ 85 1, CA.

(22) Potin v Wood [1962] 2 WLR 258.

(23) Ghana Industrial Holding Corporation v Vincenta Publications [1971] 2 GLR 24, CA. (24) Mussey v Darko [1977] 1 GLR 147, CA.

(25) Ghana Ports and Harbours Authority v Issoufou [1991] 1 GLR 140.

(26) Kimon Compania Naviera SARP v Volta Lines Ltd [1973] 1 GLR 140.

(27) Wadad Hadded Fisheries v State Insurance Corporation [1973] 1 GLR 501.

(28) Raleigh v Goschen [1898] 1 Ch 73; 67 LJCH 59; 77 LT 429; 46 WR 90.

(29) Ohene v Principal Secretary, Ministry of finance [1971] 1 GLR 102.

(30) Asiedu-Addo v Comptroller of Customs & Excise [1981] 1 GLR 505 (31) Mercer Alloys Corporation v Rolls-Royce Ltd [1971] 1 WLR 1520; [1972] 1 All ER 211; 115 SJ 407, CA.

NATURE OF PROCEEDINGS

APPLICATION by the Attorney-General for an order of certiorari to quash the consent judgment in an action brought by Delta Foods Ltd (the interested party) against the Minster for Food and Agriculture for specific performance of an agreement by the minister to purchase on behalf of the Republic a consignment of white maize imported into the country by Delta Foods Ltd. The facts are sufficiently set out in the judgment of Acquah JSC.

COUNSEL

EA Addo, Solicitor-General (with him G K Avah, Chief State Attorney, and S Y Anim, Chief State Attorney) for the Attorney-General .

Peter A Adjetey (with him William Addo) for the interested party.

JUDGMENT OF JOYCE BAMFORD-ADDO JSC.

I have been privileged to read in advance the able ruling of my 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

[p.260] of [1999-2000] 1 GLR 255

Attorney-General as the defendant in the suit in the High Court, the Minister for 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, r 6(1) and (2) of the High Court (Civil Procedure) Amendment (No 2) Rules, 1977 (LI 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, 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 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 15 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 for Agriculture was used in the writ as the 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 Constitution, 1992 states that:

“(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.”

(The emphasis mine.) The rationale 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 of the defence, thus satisfying the objective in article 88(5) of the Constitution, 1992.

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.

High Court can rectify the said error by amendment, this as that power: see article, 129(4) of the Constitution, 1992. In order to determine the real issue in controversy between

[p.261] of [1999-2000] 1 GLR 255 the proper parties, the necessary amendment to the title of the cas( should be made in suit No 495/98 by substituting the Attorney. General in place of the Minister for Agriculture as the defendant: set the Supreme Court case of Ghana Ports and Harbours Authority v Issoufou [1993-94] 1 GLR 24, SC. Except for this amendment, I would also dismiss the application for certiorari.

JUDGMENT OF AMPIAH JSC.

Upon the whole, I agree with my brother Acquah JSC 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, 1992 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 High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129), Order 15, r 6 provides that:

“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

[p.262] of [1999-2000] 1 GLR 255 so far as they affect the rights and interests of the persons who are parties to the proceedings.

And rule 9(2) (b) 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. . .

(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.”

(The emphasis is mine.)

The Attorney-General is brought in as a nominal defendant. In the two cases, referred to by counsel for the applicant, namely Republic v Commissioner for Local Government; Ex parte Nii Amar 11 [1975] 2 GLR 122 and Buobuh v Minister of Interior [1973] 2 GLR 304, CA 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 Buoboh case (supra) because, in the words of the court at 311, “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.

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In fact the terms of settlement had been signed by not only a representative of the Ministry for 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 lots right to object to a jurisdictional defect may be refused relief. In London Corporation v Cox (1867) LR 2 HL 239 the court said:

“The right to certiorari or prohibition ma 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 g round for raising the objection are fully known.”

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.

JUDGMENT BY ACQUAH JSC

In this application, the Solicitor-General on behalf of the Attorney General seeks an order of certiorari to quash the judgment and proceedings of Gyemera-Tawiah J in suit No C495/98 titled Delta Foods Ltd v the Minister for Food and Agriculture, High Court, Accra, unreported. 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 for Food and Agriculture ought to have been made the defendant. Therefore in so far as the Minister for Food and Agriculture was made the defendant, there was no defendant before the High Court and consequently the resulting judgment and pro

[p.264] of [1999-2000] 1 GLR 255 ceedings of Nana Gyamera-Tawiah J were a nullity. For a faller appreciation of this opinion, it is important to relate the facts of this case.

In 1997 Delta Foods Ltd (hereinafter called Delta), a limited liability company incorporated in this country imported into Ghana 420,000 mini bags of white maize weighing 5D kilograms per bag, and 21,000 metric tons in all. On 14 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 439,500.00 (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 29 September 1997 replied thus: “Re: Purchase of 21000 Metric Tons of White Maize Buffer from Delta Foods Ltd for Stock. to acknowledge receipt of your letter dated 14 August, 1997 offering the Ministry of Food and Agriculture

[p.265] of [1999-2000] 1 GLR 255 420,000 mini bags of while maize (21000 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 28 January 1998 reconfirming 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 reconfirm 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 a 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 for Food and Agriculture (Kwabena Adjei Dr.)”

The above letter clearly indicated that the minister himself ha inspected the stock of maize and promised to raise money to payment. On 10 March 1998 when nothing was forthcoming, Delta

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Foods wrote to the minister referring to his letter of 28 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 Foods commenced legal proceedings on 30 July 1998 against the minister.

The claims sought by Delta Foods were for:

“(1) Specific performance of a contract for the sale of 420,000 mini bags, each weighing 50 kg of a total weight of 42 1,000 metric tons of white maize at ¢39,500 per bag making a total of ¢16,590 million contained in an exchange of correspondence dated 14 August 1997, 29 September 1997 and 20 January 1998.

(2) Damages for breach of the said contract.”

When the minister was served with the writ and its accompanying statement if 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 fourteen 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 indicated to the court, presided over by 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 21,000 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 18, 23 and 25 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, even [p.267] of [1999-2000] 1 GLR 255 tually 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 ¢20 billion and 300 million , the details of which were spelt out, and further to undertake to ensure that should the question of payment of import duty or sales tax or both, or other government taxes, duties or imposts arise thereafter in respect of the importation into the country and sale of the said 4428,000 mini bags of white maize by Delta Foods, responsibility for the same should be assumed entirely by the defendant and no liability whatsoever should attach to Delta Foods in respect of same.

The terms of settlement were filed, and on 15 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 15 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), 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.”

[p.268] of [1999-2000] 1 GLR 255

Next, since under section 10(2) of the State Proceedings Act, 1961 (Act 51) and article 88(5) of the Constitution, 1992 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 v Commissioner for Local Government; Ex part Nii Amar 11 [1975] 2 GLR 122 at 126, and Buobuh v Minister of Interior [1973] 2 GLR 304, CA he finally submitted that the application for certiorari should be granted.

In his response to the above submissions, Delta Foods 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 minister 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), pp 548 and 549, Montgomerie v United Kingdom Mutual S S Assn Ltd (189 1) I QB 370 at 371, and Yeung Kai Young v Hong Kong and Shanghai Banking Corp [1981] AC 787 at 797, PC 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) of the Constitution, 1992 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 Constitution, 1992, 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

[p.269] of [1999-2000] 1 GLR 255 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 421,000 metric tonnes of white maize. For in their letter of 29 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

[p.270] of [1999-2000] 1 GLR 255 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 the 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, r 6(1) and (2) of the High Court (Civil Procedure) (Amendment) (No 2) Rules, 1977 (LI 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 interests of the persons who are parties to the proceedings.

(2) At any sta-c 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 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 LI 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 juris

[p.271] of [1999-2000] 1 GLR 255 diction 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, r 6 of LI 1129.

The next objection is founded on section 10(2) of Act 51 and article 88(5) of the Constitution 1992 Section 10(2) of Act 51 reads:

“(2) 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 Constitution, 1992 also provides:

“(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) of the Constitution, 1992 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 Constitution, 1992 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 v McMullan (1920) 2 1R 412 at 425, HL; Tuffour v Attorney-General [1980] GLR 637 at 656, CA sitting as SC; Bilson v Apaloo [1981] GLR 24 at 69-70, SC; and New Patriotic Party v Electoral Commission; Tehn-Addy v Electoral Commission [1995-96] 1 GLR 187, SC.

Now, the rationing for directing that the Attorney-General should be made the defendant in all civil proceedings against the State is

[p.272] of [1999-2000] 1 GLR 255 quite evident from his functions as set out in article 88(1) and (5) of the Constitution, 1992, 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 from 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 Constitution, 1992. 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 an amendment can easily be effected to substitute him for the “wrong” defendant For as Kpegah J ( as he then was) aptly said in Kuma v 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 (Civil Procedure) Rules, 1954 (LN 140A) 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 fourteen 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 costs to be awarded to Delta. And when the terms of settlement agreed at the said three days meetings were filed and Nana Gyamera

[p.273] of [1999-2000] 1 GLR 255

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 15 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 Akoto-Bamfo J on 2 September 1998, and that of Nana Gyamera-Tawiah J on 15 October 1998. The Solicitor-General’s application for certiorari is only in respect of the decision of Nana Gyamerah-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 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 11, p 141, para 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 v Newborough

[p.274] of [1999-2000] 1 GLR 255

(1869) LR 4 QB 585 at 589; R v Bristol and Exeter Rail Co (1838) 11 Ad & E1 202,n; R v Lancaster & Preston Rail (1845) 6 QB 759; R v Unwin (1839) 7 Dowl 578; Peak Joint Planning Board v Secretary State for Environment (1980) 39 P & CR 361; and Republic v Agboka IV, Ex parte Deh III [1984-86] 1 GLR 581, CA.

Indeed, in Miller v 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, the 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 dictates that the proper course to take is to amend the title by substituting the Attorney-General for the minister as the defendant in suit No C495/98 so as to save the proceedings and the judgment delivered therein. 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 v 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 to the other party.”

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, [p.275] of [1999-2000] 1 GLR 255 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 goes 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 Constitution, 1992 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 Constitution, 1992, 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:

“(4) For the purposes 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 or any other law, 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 Pearlman,(Veneers) SA (Pty) Ltd v Bernhard Bartels [1954] 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 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 . . I 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 his says is his correct name . . .”

[p.276] of [1999-2000] 1 GLR 255

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 v 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 Constitution, 1992 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.

JUDGMENT OF ATUGUBA JSC.

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 word’s 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 institute 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 an agent for his

[p.277] of [1999-2000] 1 GLR 255 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 ed) at p 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.” (The emphasis is mine.)

Of course, not all persons can sue and be sued by themselves. In any event, actions have long been recognised to lie against public officers in either a private capacity or an official capacity, with different legal consequences. In Boubuh v Minister of Interior [1973] 2 GLR 304, CA 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 v Goschen [1898] 1 Ch. 73 at p. 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.”

(The emphasis is mine.)

It is also well established that an action by or against a party is not nullified on grounds of capacity, unless the true legal identity of the party in question cannot be ascertained: see Ghana Industrial Holding Corporation v Vincenta Publications [1971] 2 GLR 24, CA which was followed in the terms I have just set out, in Mussey Darko [1971] 1 GLR 147, CA; Ghana Ports and Harbours Authority v Issoufou [1991] 1 GLR 500, CA; Kimon Compania Naviera SARP v Volta Lines Ltd [1973] 1 GLR 140. In contrast is Wadad Haddad Fisheries v 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

[p.278] of [1999-2000] 1 GLR 255 Attorney-General as provided by section 10 (2) of the State Proceedings Act, 1961 (Act 51) and more particularly, article 88 (5) of the Constitution, 1992 does not arise. For this contention he relies on Buobuh v Minister of Interior (supra). But that authority, read in the context of Raleigh v Goschen [1898] 1 Ch 7 3 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 v Goschen (supra) 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:—

Held, that though the plaintiffs could sue any of the defendants individually for trespasses 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 their official capacity, it was misconceived and would not lie. . . “

(The emphasis is mine.) At 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 shews 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

[p.279] of [1999-2000] 1 GLR 255 understand it, to acts alleged against them as an official body or the footing above mentioned. But any possible doubt as to what kind ‘of action this is 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, z 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 asks 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 . .

(The emphasis is mine.)

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 JA (as he then was) in Buobuh v 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 Ltd, 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 constitution, 1992 which provides as follows: “The President shall appoint such number of Ministers of State as may be necessary for the efficient

[p.280] of [1999-2000] 1 GLR 255 running of the State.” (The emphasis is mine.) 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 the 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 Food and Agriculture was sued. In Ohene v 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 Order 16, r 11 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) 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 v Comptroller of Customs and Excise [1981] GLR 505 Cecilia Koranteng-Addow J regarded the suit as one. brought against the Republic. At 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.”

(The emphasis is mine.) Then at 510-511 she added that:

[p.281] of [1999-2000] 1 GLR 255

“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 . . . 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.”

(The emphasis is none.) 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 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) of the Constitution, however, the suit could only be instituted against the Attorney-General, normally. Ought the substance to be defeated by form? I should think not. The substitution proposed by my brother Acquah JSC 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 JA (as he then was) in Mussey v 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 bears very striking similarities with Mercer Alloys Corporation v Rolls Royce Ltd [1972] 1 All E 211, quoted with approval by Francois JA (as he then was) in the Mussey case (supra). 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

[p.282] of [1999-2000] 1 GLR 255 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 218 of the report Stephenson LJ 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 v 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 Ord 15. 1 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 peculiary acts 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. “

(The emphasis is mine.) This is exactly what the course proposed by my brother Acquah JSC ensures in this case. I concur in the same and, subject to the said proposed substitution, I would also dismiss this application.

JUDGMENT OF AKUFFO JSC.

I am in full agreement with the reasoning of my brother Acquah JSC and will not add anything to it.

DECISION

Appeal dismissed.

LSNA