ASIN APIMANIM LOCAL COUNCIL v. WILLIAMSON [1965] GLR 18

DIVISION: HIGH COURT, CAPE COAST

DATE: 29 JANUARY 1965

BEFORE: LASSEY J.

CASES REFERRED TO

(1) In re Padstow Total & Collision Assurance Association (1882) 20 Ch.D. 137; 51 L.J. Ch. 344; 45 L.T. 774; [1881-85] All E.R. Rep.422. (2) Bailey & Whites Ltd v. House (1915) 31 T.L.R. 583. (3) Slater v. Mayor of Burnley Corporation (1888) 59 L.T. 636; 53 J.P. 70; 36 W.R. 831. (4) Meadows v. Grand Junction Waterworks, Co. (1905) 21 T.L.R. 538; 69 J.P. 255. NATURE OF PROCEEDING

ACTION for the recovery of payment of money mistakenly made.

COUNSEL

F. Sarkodee, State Attorney, for the appellants. Kofi Sackey for the respondent.

JUDGMENT OF LASSEY J.

This appeal poses two important legal questions. The first point of law concerns the jurisdiction of the Asin Local Court before which the plaintiff’s action was commenced and tried, and the second point concerns whether or not money paid under a mistake of law or of fact or of mixed fact and law is recoverable. I propose to deal first with the question regarding the jurisdiction of the local court. The plaintiffs’ claim before the Asin Local Court was for the recovery of the sum of £G28, being the difference in an overpayment in salary wrongly paid to the defendant. The defendant was at the material time when money was paid to him employed by the Apimanim Local Council. He was the council’s nurse and was paid

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his salaries from the council’s votes. He was on an annual salary of £G301. Learned counsel for the respondent, Mr. Sackey, submitted that as the plaintiffs, namely, the Asin Apimanim Local Council, were at the material time of the trial before the local court a government department within the meaning of section 96 (2) of the Courts Act, 19601 the local court did not have jurisdiction to entertain the plaintiffs action. [His lordship here read the provisions of section 96 (2) of the Courts Act, 1960, as set out in the headnote and continued:] It cannot be disputed that local councils which are created by statute are bodies through which the executive power of the State is exercised in the locality of the particular local council. Furthermore, the sum of £G28 which is being claimed in the present action, is part of the funds allocated to the Asin Apimanim Local Council by the Central Government to pay the salaries of its staff and for the general running of the council’s affairs. As that fund as to be paid into the Consolidated Fund of the Government or State it is clear from the combined effect of articles 29 (2) and 51 (1) of the Constitution2 that the local court could not have jurisdiction to adjudicate upon the matter in dispute. Learned state attorney for the appellants does not seem to seriously resist this argument that the local court had no jurisdiction to try the issues involved in this case. In my opinion. by virtue of section 96 (2) of C.A. 9 the plaintiffs being a government department, and the subject-matter of the dispute, namely, the £G28 sought to be recovered, also being part of the Consolidated Fund, the jurisdiction of the local court is entirely ousted and the proceedings terminating in the judgment given by the local court in favour of the plaintiffs on 5 March 1964 are a nullity and are void. It follows therefore that the proceedings before the circuit court by way of an appeal from the judgment of the local court are also null and void, as the decision of the circuit judge given in his appellate capacity was the result of the null proceedings in which the local court acted without jurisdiction. In my view the decision of the circuit judge given on 15 July 1964, setting aside the judgment of the lower court with ten guineas costs for the appellant is also void and of no effect. As I have decided that the judgment of the circuit judge was no judgment in law because it was the product of proceedings which were tried without jurisdiction, if follows therefore, that there could be no valid judgment from which an appeal could have lain further. Where an inferior tribunal like the Asin Local Court persists in

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exercising a jurisdiction which does not belong to it, its decision amounts to nothing and does create the necessity for an appeal. The point is that the Asin Local Court had no legal authority to try the case. After the decision of the local court, the circuit court was the appropriate appeal court which has the necessary jurisdiction to hear appeals from local courts; upon the said appeal coming before it the said court exercised its jurisdiction, hence the appeal was allowed as it was entitled to do in the particular circumstances. In the case of In re Padstow Total Loss & Collision Assurance Association3 it was held that if a superior court makes an order which is null for lack of jurisdiction, the order until it can be discharged can be treated as a subsisting order and can only be vacated on appeal. But here the point is that the circuit court had the jurisdiction to hear the appeal, but as the proceedings in the court below were a nullity and the appellate circuit court having allowed the appeal and reversed the judgment of the local court which was a nullity, it follows that the defendant-respondent is not precluded from raising on an appeal in this court such a defect in the jurisdiction of the trial court appearing on the record. For the reason which I have already attempted to give this appeal must succeed and the judgment of the local court date 5 March 1964, and the decision of the circuit court given on 15 July 1964, reversing the judgment of the local court, are both set aside. The effect of this order is that the plaintiff-appellants’ appeal to this court has been upheld on a technicality only, that is, on the point of jurisdiction raised by the defendant-respondent. It should be made clear that the merits of the case, namely, whether the money the subject-matter of the action, is recoverable or not, are not affected. The parties are resorted to their original positions which they were in before the action was instituted at the local court. I consider that both parties are equally at fault in suffering the proceedings to continue in both courts below. No objection was ever taken by the defendant-respondent to the trial court’s jurisdiction or at the hearing of the appeal before the circuit court. In these circumstances, I will order that each party pay its or his own costs in this court and also bear the costs of the abortive trial and the hearing in the courts below. I think the conclusions I have thus reached are enough to dispose of this appeal and should make it unnecessary for me to examine the vexed question whether the money paid to the defendant by the plaintiffs is recoverable or not. However, as both counsel here have advanced very helpful arguments on this controversial issue, I consider that I am in duty bound to express my opinion as to the legal position.

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The events which had led to the payment of the sum of £G28 to the defendant were as follows: On or about 16 July 1964, the defendant who was a nurse employed by the plaintiffs applied for a review and an increase in his salary under the procedure as laid down under the local council’s financial regulation. If the council approved of the review of the employee’s salary a resolution to that effect was passed and sent to the regional commissioner for his sanction before payment was made to the particular applicant. The defendant was originally on a salary of £G253 per annum. If his application for an increase in salary was approved, that is, if after the resolution of the council endorsing payment, the resolution was given final sanction by the regional commissioner then the defendant would have been entitled to an annual salary of £G301. However, it transpired that before the final approval of the regional commissioner was obtained the defendant was paid his increased salary. After an audit of the accounts of the council the amount of £G28, now being claimed in this action, was discovered to have been wrongly paid to the defendant, Mr. J. W. K. Williamson. The defendant has since refused to refund this amount to the plaintiffs’ council, hence this action was brought to recover the said sum. The defendant’s case was that he was entitled to the increment which was due to him as a result of the review made in nurses’ salaries by the Central Government, and that he received the said sum in good faith, as he felt he was entitled to it as of right. There is no doubt on the evidence that at the time that the defendant started drawing his increased pay the local council had not reviewed the salaries of its nurses and the payment was not duly authorised by the regional commissioner. It is clear to me that the over-payment, even if the defendant was entitled to it, was made by the clerk or payer under the mistaken belief that the amount could have been paid before the final sanction of the regional commissioner was obtained. I am satisfied from the circumstances in which this money was paid that the payer acted under a genuine mistake of the facts. The mistake consisted in the payer never having known the real conditions which should be satisfied before payment was made; however careless he might have been in omitting to use due diligence in making due inquiries before making the payment would not prevent the council from recovering the money because the mistake here was the mistake of the council’s employee whose duty it was to pay the money. I do not think that having regard to the evidence on record it was the intention of the clerk who paid the money that the defendant should have the amount at all costs irrespective of whether it was duly authorised by the regional commissioner or not.

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In my opinion, the over-payment here though a voluntary one, was under a mistake of fact and the amount so paid is in my view recoverable. Counsel for the respondent has contended that the money being claimed by the plaintiff council must have been paid under a mistake of law. Although I was at first inclined to this view, upon a review of the whole of the circumstances surrounding the payment I have come to the conclusion on the evidence that the clerk of the plaintiff council who paid the money to the defendant did not do so voluntarily because he had wrongly contravened or miscalculated his right under a particular instrument or statute. If, for instance, the regional commissioner before giving his sanction for payment to be made wrongly applied a section of the law giving him power to authorise or refuse payment to the defendant, the money paid to the defendant in those circumstances would be money paid under a mistake of law and would be irrecoverable. In the case of Bailey & Whites Ltd. v. House4 payments were made for goods ordered by a servant without authority and paid for in mistake by the master. It was held that the amount so paid was recoverable. On the other hand, in Slater v. Mayor or Burnley Corporation5 where an over-payment of water rate was made on a wrong basis of assessment due to the very construction of a local statute or bye-law it was held that it was money paid under a mistake of law and therefore not recoverable; while in a similar case of Meadows v. Grand Junction Waterworks Co.,6 over-payments of water rates made under a mistake of fact were held to be recoverable. I will allow the appeal. Judgments of the local court and the appellate circuit court set aside. Either party to bear its or his own costs. DECISION

Appealed allowed.

K. T.