MR. JAMES BADU v. THE REGIONAL DIRECTOR GHANA HEALTH SERVICE & ANOTHER
2012
COURT OF APPEAL
GHANA
CORAM
- MARFUL-SAU, JA, (PRESIDING)
- HONYENUGA, JA
- DENNIS D. ADJEI, JA
Areas of Law
- Civil Procedure
- Constitutional Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per MARFUL-SAU, JA (with HONYENUGA, JA and DENNIS D. ADJEI, JA agreeing), set aside a trial judgment as a nullity because the action proceeded without a lawful defendant. The respondent had sued non-juristic entities—the Regional Director, Ghana Health Services, and the Medical Superintendent of the Government Hospital, Saltpond. Mid-trial, counsel applied to substitute the Attorney-General’s Department, and the trial court granted it, but the writ was never amended and no service effected, so the Attorney-General’s Department never became a party and the Attorney-General did not participate. Article 88(5) mandates that suits against the State be instituted against the Attorney-General, not the Department. CI 47 requires amendment and service for joinder and timely amendment to give effect to such orders. The Court distinguished the Delta Foods authority and relied on the principle that a judicial decision requires opposing parties, concluding the trial was void ab initio.
JUDGMENT
I
MARFUL-SAU, JA:-
The record of this appeal raises fundamental procedural flaws that renders the entire trial a nullity. The plaintiff/ respondent herein commenced this action against the defendants/respondents, who clearly are non juristic persons lacking legal capacity to sue and be sued. The action was commenced against the Regional Director, Ghana Health Services and the Medical Superintendent, Government Hospital Saltpond. These two named as defendants in the action are not legal entities, a fact Counsel for plaintiff/respondent realised in the course of the trial. Upon this realisation Counsel for the plaintiff/ respondent applied to substitute the two defendants. In this appeal the plaintiff/respondent shall be referred to as the respondent and the defendants/appellants known as appellants.
At page 42 of the record of appeal is the motion filed by Counsel for respondent to substitute the two defendants who lacked capacity as defendants in the action. The motion for substitution was heard on the 6th December, 2006 at a time that the respondent had called three witnesses and the respondent himself was in the witness box testifying in chief. In his submissions to the court at page 44 of the record of appeal, Counsel for the respondent argued that the defendants in the action were no legal entities hence the need to substitute them. Counsel for respondent submitted as follows:-
‘’My Lord, there is an application on for substitution and we are praying this honourable court that the Attorney Generals Department be substituted for the Regional Director, Ghana Health Services and the Medical Superintendent, Government Hospital Saltpond. Because, the two defendants are not legal entities that can be sued. So we are praying that the Attorney Generals Department be substituted for those two institutions. And we attached herewith a copy of the notice that we sent out in compliance with the State Proceedings Act 555.’’
Pursuant to this submission which was not opposed by Counsel for the appellants herein, the court granted the application as follows:-
‘’ By Court:- The application is granted and the Attorney Generals Department should be the defendants in this case from today.’’
The first observation that I make with the submission by counsel for the respondent and the order of the court is that instead of applying to substitute the Attorney General, Counsel for the respondent applied to join the Attorney Generals Department and the trial court