Ghanaian law allows citizens to sue the State for wrongful acts without special permission, but with certain exceptions, prior notice, and procedural requirements for enforcement
In Ghana, citizens have the right to sue the State for wrongful acts, thanks to legal reforms that have eliminated the need for special permissions.
Generally, in the legal system, when a person does a wrongful act against a neighbour, the neighbour can institute an action against the person for damages or any other remedy that may be available. Would the case be different if the wrongful party here is the State?
This article seeks to answer that question. Indeed, the case would not be different if the State does a wrongful act against a citizen. The law generally allows for State proceedings, that is for citizens to institute actions against the State for wrongful acts done by the State
Historically, In England, which influenced Ghana’s legal system, people needed special permission, called a “fiat,” to sue the crown. This was because the crown was seen as incapable of wrongdoing. Ghana once had similar rules, but this changed with the birth of the 1992 Constitution and Act 555. Now, citizens don’t need a fiat or “petition of right” to sue the State.
A. CIVIL LIABILITY OF A STATE
In Ghana, the State can be held liable for wrongful acts, much like private individuals. This liability can arise under both the law of torts and the law of contracts. For torts, the State is responsible for wrongful acts committed by its employees or agents through a principle known as vicarious liability.
This means that if an employee of the State commits a wrongful act while performing their official duties, the State can be held liable. However, if an employee acts outside their official role, it may be challenging to hold the State accountable, though a claim may still be pursued against the employee personally.
The State’s liability extends to breaches of duties owed to its employees or agents, similar to private employers. Additionally, the State is liable for breaches related to property ownership, occupation, or control in the same manner as private individuals. When the State violates a statutory duty that applies to both it and private individuals, it is subject to the same liabilities in torts as a private entity would be.
The 1992 Constitution of Ghana, particularly Article 293(6) outlines specific exceptions to the State’s tortious liability. Notably, the State cannot be sued for the actions or omissions of employees performing judicial functions.
Moreover, the State is not liable for torts committed by government officers unless the officer was appointed by the Government, was paid from public funds, and held a position certified by the Public Services Commission as being funded by public money at the time of the tort.
Section 7 of Act 555 introduces further exceptions to the State’s liability, particularly concerning the Armed Forces. The State or its Armed Forces members are generally not liable for injuries or deaths that occur while a member is on duty or using Armed Forces equipment.
Additionally, the State is not liable for injuries or deaths resulting from the condition of land, ships, aircraft, vehicles, or equipment used by the Armed Forces. For these exceptions to apply, the Minister of Defence must certify that the injury or death is service-related and qualifies for an award for disablement or death under relevant laws. The court must also be satisfied that the wrongful act was connected to the member’s official duties.
In terms of contractual obligations, Section 2 of Act 555 provides to the effect that the State is similarly liable for breaches as any other entity would be. This includes claims arising from both express and implied contracts with the State, claims for damages unrelated to torts, and claims for the recovery of taxes or duties that were wrongly paid or overpaid.
Furthermore, under Section 6 of Act 555, the State can be held accountable if its employees or agents infringe on patents, registered trademarks, or copyrights while acting under the authority of the Republic.
Overall, while Ghanaian law holds the State accountable in various ways, there are specific exceptions and conditions that affect its liability. These legal frameworks ensure that the State is responsible for its actions, though certain protections and procedures are in place to manage how these liabilities are addressed.
B. REQUIREMENT OF PRIOR NOTICE
As already noted, under the current legal system, there is no requirement for a person to obtain a fiat or a “Petition of Right” before instituting an action against the State. However, the law still provides that a person who intends to bring an action against the State must give at least 30 days’ written notice to the Attorney-General of his intentions to commence legal actions against the State.
Section 10 of Act 555 provides that “A person who intends to institute civil action against the Republic shall serve on the Attorney-General a written notice of that intention at least thirty days before the commencement of the action”. This notice is to be served by the intended claimant or their lawyer on the Attorney-General or an officer of the Attorney-General’s department. The notice must indicate the set of facts giving rise to the action, the name and address of the intended claimant and the relief sought.
Therefore, by statutory implication, a claimant is required to give 30 days’ notice to the Attorney General, of an intention to bring an action against the State.
C. PROPER PARTY TO PROCEEDINGS AGAINST THE STATE
A civil suit being instituted against the State shall have the Attorney General as the defendant following section 9 of Act 555, and article 88(5) of the 1992 Constitution of Ghana.
In instances where the claimant seeks to institute civil actions against independent constitutional bodies such as the Electoral Commission and the National Media Commission, the claimant may sue these bodies in their own names and these bodies may opt to choose a counsel of their own, particularly where their interest may conflict with that of the Attorney-General.
D. RELIEFS, APPEALS, AND ENFORCEMENT OF JUDGEMENTS IN PROCEEDINGS AGAINST THE STATE
In civil proceedings against the State, Courts can grant the same types of reliefs and orders in cases against the State as they would in cases involving private individuals. The procedural rules are the same. Orders or judgments made in favor of the State, are enforceable in the same way as enforcing orders in civil actions involving private persons.
However, If an order is granted against the State, a certificate of judgment must be issued 21 days after the judgment, upon application by or on behalf of the judgment creditor (person in whose favour judgment is granted the before enforcement can begin.
It is a positive development that citizens no longer need special permission to sue the State. However, the requirements for prior notice and obtaining a certificate of judgment may still make it challenging to enforce judgments. It remains to be seen if these requirements will be challenged in the future.
