ASIEDU-ADDO AND ANOTHER v. COMPTROLLER OF CUSTOMS AND EXCISE AND OTHERS

JUDGMENT OF CECILIA KORANTENG-ADDOW J.

This is a claim for the recovery of goods which have been seized by the first defendant and delivered to the third defendant for sale. According to the statement of claim, the plaintiffs entered into a contract of carriage with the second defendant to convey the goods from Rome, Italy to Abidjan, and that while they were in transit, they were seized at the Kotoka International Airport. The claim therefore is for recovery of the goods; perpetual injunction to restrain the first and third defendants and their privies from disposing of the goods; damages for wrongful seizure and detention, and damages against the second defendant for breach of contract of carriage. The writ was issued on 25 May 1980. The statement of claim was filed on 4 June 1980. The second and third defendants entered appearance through their respective solicitors, and the statement of defence was filed on behalf of the third defendant on 2 July 1980. On 11 July 1980 the plaintiffs filed a motion for judgment against all the defendants in default of pleading. On 14 July 1980 at 2 p.m. an appearance under protest was entered on behalf of the first defendant. At 3.30 p.m. the same day an affidavit in opposition was filed by the first defendant.

The motion for judgment came on for hearing on 25 July 1980 but it was adjourned for hearing on 28 July. Counsel for the first defendant decided to submit argument as to whether or not the first defendant is a proper party before the court and whether the plaintiff ought to have complied with the State Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352), and served notice on the Attorney-General. In the affidavit in opposition sworn to by a law clerk on the authority of the Solicitor-General, it was deposed that the first defendant is a department of the Republic of Ghana and that it has no legal personality of its own. It was further deposed that the action ought to have been brought against the Attorney-General; that being the case, the Attorney-General ought to have been served with one month's notice before the action was commenced, in compliance with N.L.C.D. 352. Mr. John Boateng, the learned State Attorney, argued along these lines, and submitted that if judgment were entered against the first defendant, it would be satisfied from public funds so the claim is one which ought to have [p.508] been brought against the Attorney-General and since no notice was given, the claim is incompetent and cannot