JANET NAAKARLEY AMEGATCHER v. ATTORNEY-GENERAL & ORS

R U L I N G

ATUGUBA, J.S.C:

On 6/2/2012 the plaintiff issued a writ invoking the original jurisdiction of this court claiming in effect that the newly created District Assemblies are unconstitutional.

On 29/2/2012 the question arose as to whether having regard to the provisions of article 88(1) and (5) the Speaker of Parliament and the Minister of Local Government have been properly joined to this action.

Article 88(1) and (5) are as follows:

“ 88. (1) There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government.

(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.” (e.s.)

The contentions of Mr. Nene Amegatcher are varied but the main thrust of them is his contention that

“... the Attorney-General was never intended to act as legal counsel for the other two organs of State namely the Legislature and the Judiciary as well as independent State institutions. This is because our constitutional scheme clearly envisages situations where the interests of these constitutional organs can be antithetical to each other resulting in controversies that implicate serious questions of balances of power. It is inequitable, or even immoral in such situations for the Attorney-General to be legal adviser for the executive branch and other organs of State.” (e.s.)

The main stance of the Attorney-General on the other hand is that article 88(5) is clear and unambiguous and must be given its full effect.

We are of the opinion that neither party is absolutely right as to his position on this matter. By far the most definitive pronouncement of this court on this issue is its decision in Republic v. High Court, Accra; Ex parte Attorney-General (Delta Foods Ltd, Interested Party) (1998-99) SCGLR 595 in which this court held that the Attorney-General is the proper party to sue and be sued on behalf of the State. However, it is discernible even from that decision that this court did not give a raw application to article 88(5). It applied it in a purposive manner, resorting to the essence of the provision as opposed to its literal words. In short this court held that though the Minister of Food and Agriculture rather than the Attorney-General had been wrongly sued yet in all the circumstances of the case an amendment substituting the Attor