Is fiat relevant for instituting actions against government?

Dear Mirror Lawyer, Is the Attorney-General’s permission or what is referred to in legal circles as his fiat relevant today for instituting actions and claims against the government?

Nathaniel Bossman,
Tudu, Accra.

Dear Nathaniel, The consent of the Attorney General is an old English authority required before certain suits or prosecutions could be started in court. The permission issued by the Attorney-General is known as a ‘fiat’. Ghana inherited this practice from the British during the colonial era.

After independence, the practice continued and the written consent of the Attorney General was necessary before a civil action could be taken against the State. Further after judgment has been taken against the State, the fiat is still required before the successful party can levy execution and recover the judgment debt.

Things have changed since independence and new laws have been promulgated. The question people ask is: if we practise the rule of law and there is equality before the law, why should the permission of the Attorney-General be sought before a citizen can take the government to court. What if the Attorney-General refuses the permission and your right of action has accrued against the State?

In criminal cases, the written permission of the Attorney General is still a condition precedent to the prosecution of any criminal cases in this country. Any prosecution initiated by the police or other prosecutors without the fiat of the Attorney General will be without authority and a nullity. This is because the 1992 Constitution has stated that all public prosecutions shall be at the instance of the Attorney General.

In civil cases, the dynamism of the law and society caused a shift from the pre and post-independent position inherited from the British. Article 293 of the 1992 Constitution expressly provides that a claim against the Government could be instituted as of right without the grant by the Attorney General of fiat or the use of a process known as ‘petition of right’.

The only requirement is that the plaintiff is required by the State Proceedings Act, 1998, Act 555 to give the Attorney General 30 days’ notice before the action is started in court. These 30 days have been challenged in certain quarters as unconstitutional.

The argument is that if the Constitution has given a right for actions to be brought against the Government, Parliament by imposing a 30-day notice period has imposed limitations on that right. This, according to that school, is unconstitutional.

In the midst of that debate, the fact is, in Ghana today, a plaintiff does not require the consent of the Attorney General before he or she can sue the State. Equally so is enforcing judgments against the State by execution processes.

The same process as enforcing any other private judgment is applicable except that a certificate to that effect must be served on the Accountant General and the Attorney General 21 days from the date of the judgment.

In the case of Kuah vrs Attorney General[1981]GLR 481, N.L.C.D. 352 abolished the "fiat" requirement as an authority to bring an action against the Republic in respect of actions arising on or after May 1,1969, and replaced same with the requirement of the service of a notice on the Attorney-General as is the current position.

This notice when served must expire before an action can be started against the Republic. The statutory period given for its expiration is one month after service. In an action against the Attorney General, the court explained the rationale behind the old and new positions as follows:

“The crux of the matter raised by the submissions of learned counsel must depend on the respective relationship of the need for a "fiat" as a condition precedent and the requirement to serve notice as enshrined in N.L.C.D. 352 also as a condition precedent to maintaining an action against the State and to what extent the two or either of them has been affected by Article 211 of the Constitution, 1979.

The purpose of the "fiat" as required under Act 51, which (in any way does not exist now by virtue of the provisions of N.L.C.D. 352 as I see it) was to give an authority to sue.

In fact, it operated as a licence or a passport to commence an action against the State. This cannot be said to be so of the "notice" required under N.L.C.D. 352 which by paragraph 1 (1) merely enjoined the would-be plaintiff to notify the Attorney-General as the Chief Legal Adviser of the Government of his intention to bring an action against the State. Once the notice is served, all that the plaintiff has to do is to wait for one month after which he is at liberty to commence his action.

The pre-condition to maintain an action under the "fiat" placed the State in a privileged position whereas the pre-condition to give notice does not necessarily do so. It seeks to liberalise, to maintain fairness and to bring sanity into the provisions of the State Proceedings Act which enjoins actions against the Republic to be brought in the name of the Attorney-General.

The notice envisaged…. which dispensed with the "fiat" and served both as an authority and notice to the Attorney-General, is intended to offer the Office of the Attorney-General, an opportunity within the one month period to contact the particular state department involved in the action being contemplated for the necessary information to enable the office to study the nature of the claim and to decide what advice to give.

In my opinion, the precondition of one month's statutory notice…..still places the Attorney-General on a pedestal. It puts him in a privileged position that is not open to an ordinary person capable of suing and being sued. Generally, under our rules of procedure, a person against whom an action has been commenced is required within eight days to enter appearance and fourteen days to file a defence.
What is so special about actions against the State that a person intending to sue the Attorney-General has to serve notice on him and keep his fingers crossed for one month before taking out a writ of summons?”

In my view, no written notice is now required to be served on the Attorney-General before an action is instituted against the Republic.