1999
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Delta Foods Limited imported a large consignment of white maize and contracted with the Ministry of Food and Agriculture for the Ministry to purchase the entire stock. The Ministry, through its Chief Director and the Minister, accepted in principle, inspected the maize, and reconfirmed an intention to buy. After delays, Delta sued the Minister in the High Court for specific performance and damages. The Attorney‑General’s office appeared, submitted to specific performance, and negotiated terms of settlement culminating in a consent judgment. The Attorney‑General later sought certiorari in the Supreme Court to quash the consent judgment, arguing the suit was void because the Attorney‑General was not named as defendant as required by Article 88(5). The Supreme Court unanimously held that the High Court had jurisdiction, that misjoinder or non‑joinder of the Attorney‑General was a technical defect that did not nullify proceedings, and, in the interest of justice, ordered substitution of the Attorney‑General as defendant while refusing certiorari.
JOYCE BAMFORD-ADDO J.S.C.:
I have been privileged to read in advance the ruling of my able Brother Acquah JSC wherein he has fully set out the facts and correctly considered the arguments and submission by both parties to this suit. I entirely agree with his reasoning and conclusions so there is really no need for me to repeat them as well. The main issue here is that instead of putting down the Attorney General as the Defendant in the suit in the High Court, the Minister of Food and Agriculture was mistakenly set down. This mistake was not raised at the High Court, which court could have corrected the said error under Order 5 rule 6(1) and (2) of the High Court (Civil Procedure) Amendment (No.2) Rules 1977 (L.I. 1129).
The Solicitor General who is an officer of the Attorney General however appeared for the Attorney General and defended the action throughout. He took part in the whole proceeding including submitting to judgment for specific performance as claimed in the writ. The then presiding Judge Mrs. Akoto Bamfo J. adjourned the case to enable the parties to agree on the issue of damages and costs as agreed by the parties themselves. After several meetings the parties namely Plaintiff Delta Foods Ltd. the plaintiffs and the representative of the Attorney General appeared before Nana Gyamera-Tawiah J with the terms of settlement. The said Judge entered judgment in terms of the settlement on 15th October 1998. This is the consent judgment which the Attorney General seeks in his application for certiorari to quash on the ground that the name of the Minister of Agriculture was used in the writ as Defendant instead of that of the Attorney-General and therefore that the consent judgment was "void and of no effect." Article 88(5) of the 1992 Constitution states that:
"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"
The rational of this Article namely to institute civil proceedings against the Attorney-General was to ensure that the Attorney-General conducted the defence in all civil cases against the state, he really is the nominal Defendant. The Attorney-General's representative the Solicitor-General did in fact conduct the defence thus satisfying the objective in Article 88(5) therefore the mistake in not using his name as nominal defendant was in effect only a technicality, which