THE REPUBLIC v. HIGH COURT (FAST TRACK DIV.) ACCRA, EX PARTE: ATTORNEY GENERAL

R U L I N G

DR. DATE-BAH JSC:

This case raises interesting constitutional issues going to the very heart of the principle of the rule of law, one of the bedrocks of the 1992 Constitution. The applicant’s contention that public funds and government property cannot be attached in execution of judgment debts puts into issue the accountability of the State to persons who bring action before the courts. The current position regarding the liability of the State to ordinary people in Commonwealth jurisdictions has come about through statutory reform of the original common law position in order to adjust it to the demands of a modern state. The applicant’s contention raises the issue whether the gains of this reform movement are to be lost to litigants before the Ghanaian courts.

At common law, originally, proceedings could be brought against the Crown for breach of contract or restitution of property only after obtaining a fiat from the Crown and through the procedure of the petition of right. Indeed, in tort, the Crown could not be sued at all, since “the King could do no wrong”. By the Crown Proceedings Act 1947 of the United Kingdom, these two antiquated common law doctrines were abolished and the liability of the Crown was made as near as possible to that of a private citizen. This reform of abolishing the necessity for a fiat and a petition of right and the removal of the State’s immunity from suit for tort made the State and all other legal persons equal before the law, at least in the formal sense. This is to be contrasted with the regime in many European States, where a different and separate system of administrative law governs the relations between the State and other legal persons. Indeed the common subjection of the State and other legal persons to the same body of rules was viewed by Dicey as an important aspect of his conception of the rule of law.

The Crown Proceedings Act 1947 of the United Kingdom is mentioned here because it has exerted an influence on Ghanaian law as well. Article 293 of the 1992 Constitution, which deals with claims against the Government, clearly follows in the trail blazed by the Crown Proceedings Act, 1947. It provides as follows:

“(1) Where a person has a claim against the Government, that claim may be enforced as of right by proceedings taken against the Government for that purpose without the grant of a fiat or the use of the process known as petition of right.

(2) The Government shall be subject to all those liabi