REPUBLIC v. DISTRICT MAGISTRATE, ACCRA; EX PARTE ADIO [1972] 2 GLR 125
COURT OF APPEAL
Date: 22 MAY 1972
BEFORE: KOI LARBI J.S.C., ARCHER AND ANNAN JJ.A.
CASES REFERRED TO
(1) R. v. London etc., Rent Tribunal; Ex parte Honig [1951] 1 K.B. 641; [1951] 1 All E.R. 195; 115
J.P. 42; [1951] 1 T.L.R. 41; 95 S.J. 122; 49 L.G.R. 252, D.C.
(2) R. v. Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Zerek [1951] 2 K.B. 1;
[1951] 1 All E.R. 482; 115 J.P. 132; [1951] 1 T.L.R. 423; 95 S.J. 237; 49 L.G.R. 275, D.C.
(3) R. v. Stafford Justices; Ex parte Stafford Corporation [1940] 2 K.B. 33; 109 L.J.K.B. 584; 162 L.T.
393; 104 J.P. 266; 56 T.L.R. 623; 84 S.J. 499; 38 L.G.R. 255, C.A.
NATURE OF PROCEEDINGS
APPEAL from the decision of the Accra High Court dismissing the appellant’s application for an order of certiorari to quash an order for sale made by an Accra District Court.
COUNSEL
Joe Reindorf for the appellant.
Addy (with him B. A. Addo) for the first respondent.
Carl Quist (with him A. K Bannerman-Williams) for the second respondent.
JUDGEMENT OF ARCHER J.A.
This is an appeal from the refusal of the High Court, sitting at Accra, to grant certiorari to quash an order for the sale of a house for non-payment of general rates by virtue of paragraph 20 of Schedule VII to the Local Government Act, 1961 (Act 54).
The history of the case may be summarised in the following chronological order: In April 1965, one G. K. Quami who was the owner of estate house No. B.174/8, Kaneshie, as lessee of the Ghana Housing [p.127] of [1972] 2 GLR 125 Corporation, assigned his interest to the appellant, Winfried Barton Adio, with the consent of the lessors.
At the time of the assignment, G. K. Quami had his name entered in the books or registers of the
Accra-Tema City Council as the owner-occupier to whom all demand notices were to be sent. The name of G. K. Quami, notwithstanding the assignment, remained on the register without any rectification. The appellant claimed that in September 1965, he requested the Accra-Tema City Council by letter to enter his name as the new owner-occupier.
In March 1966, the Town Clerk of the Accra-Tema City Council filed a single application in the District Court, Accra for an order to sell a number of houses, including the estate house now in dispute, for non-payment of general rates for the year 1963-64. The application was heard on 4 April 1966 and the order of the court reads as follows: “Motion ex parte for sale is not granted. By virtue of section 20 of Act 54 I am asking the A.-T.C.C. to enter possession of the said premises to recover the respective amounts owing.” The effect of the district court’s order was to enable the city council to take possession of the estate house in question, let it to tenants, collect rents and use the rents to pay the general rates overdue.
This is provided for by paragraph 20 (2) of Schedule VII which reads:
“In a case where an order has been made entitling a Council to take possession of premises the Council may lease the premises and from the income derived from the premises they shall deduct—
(a) all the costs and expenses of and incidental to the taking of possession; and
(b) all the expenses incurred in the management and leasing of the premises, and the residue of the
moneys remaining in the hands of the Council derived from the premises shall be applied by the
Council in satisfaction of the rate payable. On satisfaction of the rate payable in any manner the
Council shall relinquish possession….” There is no indication that the city council in pursuance of the court order for possession took steps or attempted to go into possession. However, in the first week of June 1966, the city council filed an ex parte motion for review of the court’s earlier order for possession. The main reason stated in the affidavit supporting the application for review was “That this order [for possession] has been most impracticable to execute due to the fact that landlords and tenants have not co-operated with council regarding collection of the rates due.” The city council therefore prayed that an order for sale should be substituted for the order for possession. Accordingly, on 13 June 1966 the district magistrate minuted the following in the
record book, “Motion granted as prayed.” But it appears that for unknown reasons, the formal order for sale was signed on 27 September 1967 by another magistrate, fifteen months after the motion had been granted. As a result, the estate house [p.128] of [1972] 2 GLR 125 was sold by public auction conducted at the premises on 2 July 1968 to the second respondent, Cecilia Martey.
In January 1969 after the appellant had become aware of the sale, he applied to the High Court, Accra, for leave to apply for an order of certiorari to quash the order for sale and the certificate of purchase granted to the second respondent. The two significant dates affected by the appellant’s application were 13 June 1966 when the motion for review was granted and 27 September 1967 when the formal order for sale was drawn up and signed. When the appellant filed his motion for leave for certiorari to issue, he was out of time because order 59, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides that such applications should be made within six months. The learned trial judge, however, granted an extension of time. The main grounds for the application were that:
“(1) When the appellant took the assignment of the estate house from G. K. Quami, he took steps to notify the city council of his address as the new owner-occupier and that as evidence that the city council knew of the change, there was a letter addressed by the city council to the appellant forwarding two receipts for ‘general rate’ and ‘miscellaneous.’ The letter was dated 28 October 1965. (2) Moreover, the city council either failed to send a demand notice by registered post or did not affix a notice on the premises as required by paragraph 19 of the Seventh Schedule to Act 54.” It was therefore argued before the court below that the district court had no jurisdiction to make the order
for sale. After hearing learned counsel for the appellant, the court below permitted the city council to
adduce oral evidence to prove (1) that the city council did not receive any notification of change of
ownership and (2) that the provisions of the Seventh Schedule were complied with before the order for sale was granted.
In his ruling, the learned High Court judge found that the appellant had not given notice to the city
council of the change of ownership from G. K. Quami to the appellant and accordingly, the appellant was not entitled to the benefit of the proviso to paragraph 19 of the Seventh schedule which reads:
“Provided further that where any person claiming to be the owner of any assessed premises has given notice in writing to the Town Clerk of his name and postal address, no notice as aforesaid shall be affixed on such premises until a demand in writing for payment of the rate due thereon has been sent by registered letter by the Town Clerk to such person, and default has been made for one month after the date of posting such registered letter.” [p.129] of [1972] 2 GLR 125 The learned judge also found that the demand notice was delivered to an occupier of the premises on 8 June 1965 as evidenced by a notebook (exhibit 6) kept by a Mr. Ashong, a rate collector. In other words, the demand notice was not affixed to the premises as contended by the city council. Nevertheless he held that certiorari was inappropriate in the circumstances because when the district court made the order for sale, “the facts presented to him did show that the owner had been duly notified.”
Against the decision of the court below, the appellant’s learned counsel argued in this court that the city council did not comply with paragraph 19 of the Seventh Schedule to the Local Government Act 1961 (Act 54).
Paragraph 19 of Act 54, Sched. VII, provides as follows:
“If the amount of a general or special rate or any instalment thereof payable in respect of any premises is not paid within ten days from the date upon which it is due, the Town Clerk shall cause to be affixed on some conspicuous part of such premises a notice in the form prescribed in Form 3 to this Schedule to the effect that, if the amount of the rate payable in respect of such premises is not paid within twenty-one days, proceedings will be taken for the sale or entry into possession of such premises for the purpose of defraying such amount …”
There is also the proviso to paragraph 19 already cited in this judgment to the effect that where an
owner-occupier has already notified the town clerk of his name and postal address, then the demand
notice must be sent to him by registered post and in such a case no notice shall be affixed to the premises.
It was the contention of the appellant that neither of these statutory requirements were fulfilled before the town clerk applied to the district court for the order for sale. It was submitted that these were conditions precedent to the exercise of jurisdiction by the district court, and as neither of these conditions was complied with, the district court had no jurisdiction to order the sale of the premises. It is not in dispute that when the application was first made to the district court there was an amount due to the city council in respect of outstanding general rates. What is in dispute is whether the city council complied strictly with the provisions of paragraph 19 of the Seventh Schedule to Act 54.
When the district magistrate heard the ex parte application filed by the town clerk, he did not consider any other evidence or take oral evidence from any person apart from the affidavit sworn to by the town clerk in support of his ex parte application. In that affidavit, the town clerk deposed that the general rates in respect of several houses including the estate house in dispute were outstanding and that the statutory notice under paragraph 19 of the Seventh Schedule had been given. There is no doubt therefore that the district magistrate assumed that what the town clerk had stated in his affidavit was correct and accordingly [p.130] of [1972] 2 GLR 125 granted the application. It is not possible to say, however, what the position would have been if the district magistrate had ordered that the application by the town clerk should have been on notice to the persons affected by the application.
But it is on record that when the appellant filed his motion paper in the High Court, his affidavit indicated that he had some time after the assignment to him, notified the city council of the change of ownership of the estate house. He exhibited a letter dated 28 October 1965 from the city council forwarding receipts in respect of a cheque he had transmitted to the city council. The appellant could not produce a copy of the letter he wrote to the council but thought the letter from the council forwarding the receipts was the reply to his letter and that the city council should have taken steps to alter their register. The learned trial judge dealt with this point as follows in his judgment:
“And the evidence of S. Ashie Neequaye, the accountant of the council, was to the effect that no letter
accompanied the cheque forwarded in payment of the rates in respect of which the letter (exhibit B to the applicant’s affidavit) was written and that the receipt (exhibit 3) tendered in evidence by them and quoted in exhibit B was issued and forwarded to the applicant; and that at the back of the cheque was the name of the applicant; I do not believe that no letter accompanied the cheque. I believe that the cheque was received under cover of a letter showing the rates to be paid with the amount on the cheque. But I doubt whether such a letter specifically stated that the ownership of the premises had changed into the name of the appellant and that the records should be changed accordingly.”
I must confess that although this is a finding by the court below, I am unable to support it whole-heartedly because without seeing the original letter written by the applicant, it seems impossible to say that that letter did not mention anything about change of ownership. The letter from the city council has a folio number stated at the right-hand top. It is stated as No. TOF. 20/Vol.12/252. If this file had been made available to the court by the city council, perhaps the court below would have been able to decide for itself whether the letter from the appellant was dealt with on this file and if so whether the appellant’s original letter was on this file. This file would have enabled the court below to investigate whether there had been any dereliction of duty on the part of the city council to make the necessary changes in their registers. Unfortunately, the appellant could not produce a copy of his letter to substantiate his case that he notified the council, and it seems to me that in the absence of such proof, it would be unsafe to disturb the finding of the court below on this point.
The next question to be answered is whether a notice was affixed to the premises as required by the
statutory provisions of Act 54. The learned trial judge found as a fact that no such notice was affixed to [p.131] of [1972] 2 GLR 125 the premises because it appeared from the evidence adduced by officials of the city council, that the demand notice was delivered into the hands of someone. This finding clearly demonstrates that the statutory requirement of affixing notice to the premises was not complied with. Notwithstanding this finding the learned trial judge reasoned as follows:
“I incline to the view that under these provisions the only condition precedent upon which the district magistrate assumes jurisdiction upon the application of the town clerk is that the rates must have been due and must have remained unpaid within 21 days after the posting of the notices in question. In the present case this condition precedent was fulfilled.”
Surely, after having found that no notice was posted, it was incorrect to conclude that the condition
precedent was fulfilled. It is clear from the statutory provisions of Act 54 that the town clerk is entitled to apply to the court when the general rate is overdue and when one of the statutory notices has been given.
The Act itself gives the district magistrate jurisdiction in all such matters irrespective of the value of the property involved. But the Act specifically, in paragraph 20 of the Seventh Schedule, enjoins the district magistrate to satisfy himself that the provisions of paragraph 19 have been complied with and that the amount due remains unpaid before ordering the property to be sold or ordering possession to be taken by the city council. It appears that he has a mandatory duty to make one of the two orders whenever he is satisfied that compliance is complete. He has no discretion in the matter because the operative words are, “he shall either order the premises to be sold to defray such amount or order that the Council take possession of the premises.”
In the present case, the district magistrate had no opportunity of checking whether there had been full compliance because he did not hear other evidence apart from the affidavit filed by the city council.
When the High Court heard the motion for certiorari, that other evidence became available to the court on the volition of the city council itself and the learned trial judge rightly found that no notice was affixed on the premises. If this fact had been known to the district magistrate, he would no doubt have come to the conclusion that the statutory requirements had not been fulfilled and therefore he had no justification to order sale of the property. Yet the High Court refused to quash the order of the court below on the ground that the order of the district magistrate was not a nullity.
In this court, learned counsel for the second respondent has also argued that certiorari is an inappropriate remedy in such a case because the order of the district magistrate was regular on the face of it and as the district magistrate had jurisdiction in the matter, there had been no excess of jurisdiction. Learned counsel for the appellant on the other hand argued that the conditions precedent, namely, the existence of outstanding rates and the affixing of the statutory notice, were collateral [p.132] of [1972] 2 GLR 125 matters or issues which the district court was to investigate before assuming jurisdiction. As one of these collateral facts was proved in the proceedings in the High Court to be non-existent, it followed that the district magistrate had no jurisdiction in the matter. It must be pointed out that the decided cases in English law on such matters are legion and it is not easy to draw a clear distinction between what is a collateral fact and what is not. Indeed the obscurity is acknowledged by the distinguished contributors to the subject-matter in Volume 11 of Halsbury’s Laws of England (3rd ed.), para. 117 at p. 60 as follows:
“It is often difficult to decide whether a fact is collateral or not. The distinction is between the case where jurisdiction is conferred on an inferior tribunal only upon condition that some particular state of facts exists, and the case where the question of the existence of the fact is one of the issues of fact which the inferior tribunal is given jurisdiction to determine.”
Some well-known authors of textbooks on administrative law prefer using another terminology. They
think that a collateral fact is what they term “ jurisdictional.” A cluster of decided cases now point to an established principle of law that where an inferior tribunal decides a collateral issue, the High Court is entitled to look at the correctness of the decision even with the aid of extrinsic evidence, and if it appears that the decision is erroneous, then certiorari would lie to quash the decision. But the onus on the applicant is high. See R.v. London etc., Rent Tribunal; Ex parte Honig [1951] 1 K.B. 641; R.v. Fulham etc., Rent Tribunal; Ex parte Zerek [1951] 2 K.B. 1, D.C.
In the present appeal, the Local Government Act, 1961, has given district courts exclusive original
jurisdiction in all cases where a local authority wants to sell rateable property in order to defray rates
overdue. The most important power vested in the court so far as the local authorities are concerned is the power to order sale or to permit the local authority to take possession. Under the provisions, the real question in these cases is “when can the city council go to court?” Can it go to the district court for an order when the statutory requirements have not been complied with? The answer is no. The power of the district court to order sale or to order possession is dependent on the statutory conditions. In other words, the assumption of jurisdiction to make one of the statutory orders depends on satisfactory evidence before the district court that the statutory provisions have been complied with. Whenever there is a proof of full compliance with the statutory provisions, there is a mandatory duty on the part of the court to make one of the orders specified in the Schedule. On the other hand, if the statutory requirements have not been complied with, the district court has no jurisdiction to make one of the two orders, because the court has no discretion in the matter whether or not to make one of the orders. It is of vital importance to appreciate that when the term “excess of jurisdiction” is used, it [p.133] of [1972] 2 GLR 125 may mean that from the inception of the case, the court has no jurisdiction whatsoever because the nature of the case or the value involved is beyond its jurisdiction. But it may also mean that although the court has jurisdiction to hear the case, the orders which the court can pronounce are restricted by statute. If an order is therefore beyond the powers of the court it is perfectly correct to say that it has exceeded its jurisdiction. I think it is in the light of the second meaning that the present appeal should be considered.
There is no doubt that Act 54 has conferred jurisdiction on district magistrates to hear applications by local authorities for orders to sell or to take possession of premises whenever general rates are overdue.
The Act moreover stipulates that before such orders are made, the district magistrate may hear, as he
thinks fit, all relevant evidence to enable him to satisfy himself that all the statutory requirements (that is the provisions of paragraph 19 of the Seventh Schedule) have been complied with. In the resent appeal, the district court heard no other evidence but relied solely on the affidavit filed by the town clerk. The application was ex parte and the district court was restricted to the version of the city council. When the motion was granted and the formal order was drawn up, it appears that the record of the district court was regular on its face because it was “the inscrutable face of a sphinx.”
However, when the motion for certiorari came before the High Court and the question of jurisdiction to order sale was raised, the learned High Court judge exercised his discretion and allowed oral evidence to be given. This extrinsic evidence established that in fact no notice was affixed to the premises as required by paragraph 19 of the Seventh Schedule to Act 54. What the learned trial judge did was to transform “the inscrutable face” of the record of the district court into a scrutinizable one. This clearly proved that if the fact of non-compliance had come to the notice of the district court, it would have no jurisdiction to make the order for sale, because such an order would have amounted to excess of jurisdiction. The evidence before the learned High Court judge clearly proved that there was non-compliance and as such the district court could not have had the power to order sale. Yet the learned High Court judge refused to grant certiorari. It is well known that the order of certiorari is discretionary but it seems to me that where it is obvious that it should be granted as in the present appeal, very strong circumstances must exist to prevent the grant. Here the circumstances are all in favour of a grant. Sir Wilfrid Green M.R., as he then was, stated the principle in R. v. Stafford Justices; Ex parte Stafford Corporation [1940] 2 K.B. 33 at p. 43, C.A. as follows:
“Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess [p.134] of [1972] 2 GLR 125
of jurisdiction, then a person aggrieved by that is entitled ex debito justitiae to his order. That merely, means this, in my judgment, that the court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies, it is well known and settled that in certain circumstances . . . the Court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a Judge at a trial refuses to do so, then the Court of Appeal will set the matter right.”
In conclusion, I would say that the order for sale cannot stand where there is a clear finding by the High Court that the statutory notice was not affixed to the appellant’s premises. The order of the district court as it stands amounts to excess of jurisdiction and must be quashed.
The appeal is, therefore, allowed and the ruling of the court below is set aside. Certiorari would issue to quash the order of sale and consequently the certificate of purchase issued to the second respondent is hereby declared to be of no legal effect.
JUDGEMENT OF KOI LARBI J.S.C.
I agree.
JUDGEMENT OF ANNAN J.A.
I also agree.
DECISION
Appeal allowed.
