REPUBLIC v HIGH COURT, ACCRA; EX

PARTE ATTORNEY-GENERAL (DELTA

FOODS LTD., INTERESTED PARTY)
[1999-2000]
Notes: Minister = agent
State= principal
Facts:

The Delta Foods Company Ltd had imported 420000 bags of white maize and
subsequently entered into an agreement with the Minister for Food and Agriculture who on
behalf of the State agreed that he would buy all the consigned bags of white maize. When the
Minister failed to execute payments for the bags, Delta Foods took legal action on the grounds of
breach of Contract and sought a remedy of specific performance compelling the Minister to pay
for all the bags as agreed. Thus when served with the writ and statement of claim, the Minister
directed it to the Attorney-General, who entered appearance on his behalf. Yet subsequently, the
AG failed to take any action in respect of the suit and judgment in default was granted against
him, with a deputy of the Solicitor General who stated that the Minister had recanted his position
and was ready to submit himself to the remedy of specific performance in respect of the purchase
of the Maize bags. The Court proceeded to award the said remedy in favor of Delta Foods
Limited and entered the settlement terms (worth to note that during the three meetings that led to
the final settlement, the AG was always represented during the meetings) between the Minister
and Delta Foods as a consent judgment. During those proceedings however the Minister was
represented by the Chief State Attorney.
Subsequently however, the Attorney-General brought an application before the Supreme Court to
issue an order of Certiorari to quash the consent Judgment. In his submissions, the AG contended
that the Minister had entered into the agreement as an agent of the Republic /State, it should have
been the State that should have been sued and not the Minister. Thus the High Court had
assumed wrong jurisdiction in matter. The AG in the light of this argument went on to quote
Section 19(2) of the State Proceedings Act, 1961 (Act 51) in conjunction with Article 88(5) of
the 1992 Constitution, where it is stated that he Attorney-General should be the nominal
defendant in all civil proceedings against the State, thus making the action against the minister
unconstitutional and therefore certiorari should issue to quash it.
In opposing the present application by the AG, Delta Foods contended that inter-alia the AG had
represented the Minister since the inception of the suit and not even once raised an objection as
to the competence of the Minister to be the Defendant of the suit. They further argued that even
if it were to be true that the AG should have been the Defendant on the suit, the Court should
have just to exercise their discretion to amend the suit in the required manner and do substantial
justice by avoiding a multiplicity of suits.

PROCEDURAL HISTORY: The matter commenced in the High Court and is now before the
Supreme Court for them to exercise their power of Judicial Review.
ISSUES:
Whether or not the citing of the Minister as Defendant in the suit before the High Court was
unconstitutional and operated to render the proceedings void? Whether or not the High Court
assumed wrong jurisdiction in adjudicating the matter?
Whether or not the suit could be amended as counterclaimed by Delta Foods with an amendment
seeking to cite the AG as the Defendant instead of the Minister?
Whether or not the writ of certiorari could be issued against the Judgment issued in the High
Court?

HOLDINGS: Appeal Dismissed

1. The action in the Court could not be deemed void or unconstitutional simply because
there was a failure to name the State (represented by AG) as the defendant instead of
having the Minister stand in as Defendant.

2. Per a combined reading of both Articles 88(1) and 88(5), it is evident that all actions on
behalf of the State shall be taken by the AG and in all civil proceedings against the state,
the AG shall be made Defendant. Nevertheless in the spirit of Justice and to avoid
multiplicity of Suits, Delta Food counterclaim will be allowed and the record in the High
Court decision will be amended by substituting the Minister with the AG in the role of
Defendants.
3. The grant of Certiorari is refused as it would be futile because justice could not be
obtained by issuing it.
RATIO DECIDENDI:
ACQUAH JSC:

The AG contended that the decision in the High Court was void as the Court had
overstepped its Jurisdiction by holding the minister as Defendant instead of the AttorneyGeneral. The Learned ACQUAH JSC to that statement retorted that the Law of Agency
was primarily focused on establishing liability in Agent-principal relationships rather than
trying to determine the jurisdiction of the Court.

Thus on the question as to whether the Judgment of the High Court should be rendered void or
not because the Minister was made the Defendant, ACQUAH JSC responds that where a person
is sued in respect of a transaction he entered into as an agent, and that person fails to the steps to
join his principal in the suit, the judgment of the court cannot be vitiated on grounds that the
defendant was an agent of a principal who was not a party to the suit. The absence of the
principal in the suit does not amount to lack of jurisdiction in the court. To back his stand,
ACQUAH JSC cites the Order 15, Rules 6(1) and (2) of the High Court Civil Procedure
(Amendment No2) which gives the authority to a Judge to summon the Principal of an Agent but
in the absence of that Principal, the Court could still go on and adjudicate on the issues and
questions that affected the rights of the Agent.

On the AGs second contention that the decision in the High Court should be overturned
based on the fact that as it was established the Minister was acting on behalf of the State,
thus AG should have been named Defendant pursuant to Article 88(5) of the Constitution
and section 10(2) of Act 51,the Learned ACQUAH JSC retorts firstly that he doesnt
acquiesce with the submissions of Delta Foods as the Doctrines of Estoppel cannot be
invoked to render valid or invalid an Act which a statutes Forbid and cites a plethora of
cases to back that statement up, like Brandshaw v McMullan (1920) 2 1R 412 at 425,
Tuffour v Attorney-General [1980] GLR 637 at 656. The learned Judge clearly agrees
that the AG should have been the right Defendant however his refusal to grant of
Certiorari on the High Court Judgments is based on the fact first of all the AG is made
defendant not to assume liability per se in all those case, but instead to act as a nominal
Defendant. The Learned Judge further contends that the AG or a representative of his
were present throughout the different stages of the action in the High Court and not once
did they object to the Minister being named Defendant. Lastly ACQUAH JSC says that
he is not inclined to grant a remedy of certiorari because it would be futile and pointless
to do so as the case has already been settled with the State admitting their liability thus no
purpose would be served in granting the certiorari to quash the High Court decision.

Lastly, ACQUAH JSC agrees with the contention of Delta Foods to have the suit
amended by replacing the Minister with the AG as defendant as the matter was already a
settled one and that changing names would be merely inconsequential. To buttress this
point, the Judge cites the case of Pearlman,(Veneers) SA (Pty) Ltd v Bernhard
Bartels [1954] 3 All ER 659.