KUAH v. ATTORNEY-GENERAL AND ANOTHER

JUDGMENT OF EDWARD WIREDU J.

On or about 26 February 1980 the plaintiff issued out of this court a writ against the defendants for (a) an injunction restraining the defendants herein from unlawfully interfering with [p.484] the plaintiff's trade or business, and (b) damages against the defendants herein for unlawful interference with the plaintiff's trade as a seaman. The writ filed was accompanied with a twenty-paragraph statement of claim setting out the facts on which the plaintiff intends to rely to prove his claim.

On 29 February 1980 an appearance was entered on behalf of the defendants by the Solicitor-General and on 5 March a thirteen paragraph statement of defence was filed on their behalf in answer to the claim by the plaintiff. On 19 March an amended statement of defence was filed which reads:

"The defendants will at the hearing date contend by way of preliminary objection that the plaintiff 's action is not properly before the court, in that no statutory notice was served on the first defendant as enjoined by paragraph 1 (2) of the State Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352)."

This amendment was moved and was granted without objection on 14 April 1980. On that same day counsel agreed to argue the terms of the amendment as a preliminary issue.

Arguing in support of the objection, Mr. John Boateng, State Attorney, representing the Solicitor-General for the defendants, submitted that paragraph 1 (2) of the State Proceedings Act (Amendment) Decree, 1969 (N.L.C.D. 352), enjoined the plaintiff to have given a statutory one month's notice to the Attorney-General. Learned state attorney argued that the facts before the court show that the plaintiff failed to comply with this statutory request. He therefore submitted that since this statutory requirement, if I understood him well, was a sine qua non to maintaining the plaintiff's action, his failure to comply with it rendered his claim incompetent before the court.

Replying on behalf of the plaintiff, Mr. Tsatsu Tsikata argued that under article 211 of the Constitution, 1979, all claims against the State (the government) has been put on equal footing with claims between individual citizens. Learned counsel argued that under article 211 proceedings against the State did not require the grant of a fiat or the use of the process known as petitions of right. Learned counsel referred to clause 2 of article 211 and submitted that it was made abundantly clear under the sub-clause that