HIGH COURT, ACCRA
DATE: 27 JANUARY 1967
BEFORE: AMISSAH J.A.
CASE REFERRED TO
R.v. Saunders (1847) 9 L.T. (o.s.) 246; 2 Cox C.C. 249.
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to an application under paragraph 90 of the Courts Decree, 1966
(N.L.C.D. 84), to recover from a court registrar a judgment debt lost through the negligence of the court registrar. The facts are fully stated in the ruling of Amissah J.A. sitting as an additional judge of the High Court.
COUNSEL
Applicant in person.
K.A. Sekyi, Senior State Attorney, for the respondent.
JUDGMENT OF AMISSAH J.A.
The applicant, Mr. Cruickshank, obtained a judgment against one Romanadi for ¢252.60 together with ¢3.96 costs. He subsequently applied successfully for the arrest of the judgment debtor, presumably when he suspected that the judgment debtor intended fleeing the country without satisfying the judgment debt. As a result of the arrest, the magistrate made an order that the judgment debtor should deposit £G200 (¢480.00) in court or provide sureties in the sum of ¢240.00 each to be justified. It should be explained that at the time of the order an appeal by the judgment debtor against the judgment was pending and so further costs were expected to be incurred. This may explain why the deposit and surety asked for were higher than the judgment debt. The appeal was dismissed in December 1965. The judgment debtor has since given proof of his suspected intention by actually absconding. He did not deposit any money into court. He produced two people as his sureties. But now a decree that the sureties should pay the applicant his judgment debt, in the absence of the judgment debtor, cannot be served on them. Neither can a writ of fi. fa. be executed against their properties. The simple reason for this turn of events is that they are not known at the respective addresses which they gave and cannot be found in Nima the area of Accra where they said they lived. The applicant has therefore lost the chance of recovering the fruits of the victory which he won in court. It is certainly a sad commentary on the state of the courts if they cannot protect a citizen to whom they have given judgment from being deprived of his award by some clever ruse of the losing party. Especially when that manoeuvre has actually been anticipated and an application has been made to the court purposely for protection against it. The applicant in the circumstances applies under paragraph 90 of the Courts Decree, 1966 (N.L.C.D. 84), for the amount to be recovered from the registrar of the Accra New Town District Court, Mr. J. Robert Okoe, whom he charges with negligence which has occasioned him this
[p.20] of [1967] GLR 17
loss. It is a novel complaint, which requires the spirit of a Hampden to lodge. Paragraph 90 of the Decree reads as follows: “If any officer employed to execute an order of Court wilfully or by neglect or omission loses the opportunity of executing it, then, on complaint of the person aggrieved and proof of the fact alleged, the High Court may if it thinks fit, order the officer to pay the damages sustained by the person complaining or part thereof and the order shall be enforced as an order directing the payment of money.”Mr. Sekyi, senior state attorney, for the registrar has taken two points. Firstly, that the acts complained of were completed before the Courts Decree, 1966, came into force; that this not being a purely procedural matter the Courts Decree, 1966, cannot be invoked in it. I am unable to accept this argument. It is true that the Courts Decree, 1966, came into force on 1 October 1966 and that the negligence complained of occurred in November-December 1965. But Mr. Sekyi overlooked the fact that paragraph 90 of the Decree was, but for the omission of a comma, an exact reproduction of section 151 of the Courts Act, 1960 (C.A. 9), which the Decree repealed. The Courts Act was in operation at the time of the alleged default. Thus the same provision existed at the time of the acts complained of and still continues to exist.
It is difficult to see why the provision is said not to be a purely procedural matter, because all it does is to provide a summary method for dealing with court officials who fail to perform their duty. It does not create rights in a complainant or impose new duties upon court officials which do not already exist. I am sure that if a court official wilfully or by neglect or omission fails to execute his duty and as a result causes injury to an individual, that individual would, but for regulation 57 (3) of the Judicial Service Regulations, 1963 (L.I. 319), have an action against the official in damages. The regulation protects registrars and other duly authorised officials of the court from being sued for any bona fide act or omission in the execution of court processes. But in my view that is not a licence for their negligence or wilful misdeeds. I make mention of the regulation at this stage to show that the protection it affords to bona fide acts or omissions argues convincingly that court officials would have been otherwise liable even for these. I am therefore of the view that paragraph 90 of the Courts Decree, 1966, which replaced section 151 of the Courts Act, 1960, deals with a procedural matter. By section 9 of the Interpretation Act, 1960 (C.A. 4):
[p.21] of [1967] GLR 17
“Where an enactment is repealed or revoked and another enactment is substituted, by way of amendment, revision or consolidation—…
(c) all proceedings taken under the repealed or revoked enactment shall be prosecuted and continued under and in conformity with the substituted enactment, so far as consistently may be.”
In the light of this provision I think that the proceedings by way of complaint followed by the order that the official should pay for the damage sustained by the complainant upon proof of the fact complained of is one which should be prosecuted before the High Court under paragraph 90 of the Courts Decree, 1966. One point arising out of the discussion above is whether the registrar is not protected from the present proceedings by regulation 57 (3) of the Judicial Service Regulations, 1963 (L.I. 319). I do not see how he is. The regulation says that the registrar should not be sued. But the applicant has not brought any action against the registrar. He has merely lodged a complaint against him which he is entitled to do under the Decree. And indeed one can think of reasons why it should be undesirable that ordinary actions which take their normal course in court should not hang over court officials for acts they have performed in the course of duty. The administration of justice would be embarrassed by a series of pending actions before the courts against a host of court officials arising out of the execution of their duties. But to make such officials completely immune from correction for wrongs that they do in the course of duty would be to invite them to misconduct themselves. Hence this summary method of disposing of complaints against them is provided by paragraph 90 of the Decree. It follows from this that in my view paragraph 90 of N.L.C.D. 84 and regulation 57 (3) of L.I. 319 are not irreconcilable. If they were, the elementary rules of interpretation would require that the regulation, being subsidiary legislation, should yield to the substantive provision of the Decree. To hold otherwise would mean that the provisions of substantive legislation could be rendered nugatory by subsidiary legislation.
The second submission made by Mr. Sekyi was that even if paragraph 90 of the Courts Decree wasapplicable, it did not cover a situation of this kind because the registrar had executed the order of court. All he was required to do under the order, according to this submission, was either to take the amount ordered to be deposited or to take the justification oath of the sureties offered as an alternative. The registrar was not to set himself up as an investigating agency to find out the sufficiency of the sureties.
The practice on the grant of bail in criminal cases was prayed in aid, and in that connection the
[p.22] of [1967] GLR 17
submission was made that it was not the registrar who made the investigation as to the sufficiency of the bail but rather the police, they being the party interested in the accused not absconding. But R. v. Saunders (1847) 2,Cox C.C. 249, demonstrates that it is primarily the duty of the court, and not the police, to ascertain the sufficiency of the sureties who tender themselves on behalf of the accused. The following passage from the judgment of the court shows that we share certain common experiences with the English and that as much caution. ought to be exercised here as is done there. The court observed at p. 250 as follows:
“The very form of a recognizance for bail shows that a money qualification is contemplated by the law; that qualification is one obvious test of respectability—in many cases the only one possible; and it is of the utmost importance that inquiry should be made into the sufficiency of that qualification in every case, seeing that persons accused sometimes find it worth their while to indemnify their bail and so escape from justice.
So far, then, as this gentleman [meaning the magistrate] has evinced an anxiety to ascertain the sufficiency of the bail, he has been in the right.” Of course the court may order that reasonable notice be given to the prosecutor or the police to enable him or them to inquire or to object to the sufficiency of the bail but this does not shift the duty of inquiry on to the prosecutor or the police.
But accepting for the moment that the duty of investigation of the sureties that is of the police, surely the analogy in this case would require that the party most interested in the arrested person not getting away be informed of the sureties offered so that he, like the police, might carry out his investigations to ensure that his man did not get away. In this case the registrar accepted the sureties and administered the justification oath without either investigating them himself or even informing the person most interested in their genuineness and worth. The fact that the registrar so accepted the sureties without informing the applicant clearly appears by inference in the latter’s affidavit. It is not controverted by the registrar. Bail in criminal cases is not the only type of security where sureties are investigated. In admiralty actions in England when bail is granted, there is an investigation by a marshal of the sufficiency of the proposed bail. He reports that he has made “diligent inquiry and satisfied himself that . . . the proposed bail . . . are respectively sufficient sureties” for the specified sum (see Annual Practice, 1961, p. 2230). On the other hand where receivers have to give security, notice of their appointment must be given to the judgment debtor,
[p.23] of [1967] GLR 17
who is entitled to have an opportunity of objecting to the sureties and the amount of security (see Annual Practice, 1961, p. 1226), More examples may be given. But the story they tell is the same; that without the court investigating or giving the party most interested the opportunity to do so, there is the serious risk of the security ordered to be given turning out to be completely worthless.
If the burden of Mr. Sekyi’s contention is correct, then I cannot see what protection a court should think it is giving a suppliant by making an order for the deposit of money into court or for security by sureties to be justified. As the applicant, who appeared in person, neatly put it, if this is so then anyone arrestedcould bring any other person from the street to stand surety. All that the registrar has to do is to administer an oath on a printed form to him. What possible safeguard could there be in this? If the court order in the alternative is to make any sense it should provide the same guarantee whichever alternative the judgment debtor chooses to obey. But how can it be said that justification of sureties taken in the manner counsel argued is comparable in any way to a deposit of physical cash? There is every chance that the sureties might not be worth the form they are sworn on. If this is the law, then it cannot boast of protecting anybody. I do not think it is. In my view a registrar owes a duty so to act as not to render court orders purposeless. That he or some other authorised court official has to execute the orders of the court is not challenged.: It is so provided in regulation 57 (3) of the Judicial Service Regulations, 1963 (L.I. 319). He has to carry out his duty in cases like the present by ensuring that the money ordered to be deposited in court is in fact deposited, or that satisfactory sureties are produced instead. If he cannot investigate the sufficiency of the sureties, he is obliged to notify the judgment creditor so that he might take steps to protect his own interests. Should he not investigate or put the judgment creditor in the position to do his own investigation, he runs the risk of finding that the security he has taken is valueless. This is failing in his duty. It amounts to losing an opportunity of executing an order of court through negligence in that he fails to execute the court order to take security from men with the means they say they have to satisfy the debt. And he ought to be made responsible for the loss occasioned thereby. The registrar failed to take the most elementary precaution that would have ensured that these worthless oaths were not taken. I understand that he asked the would-be sureties if they owned the houses they gave as their addresses. Who would expect this question to uncover a fraud? He also, I understand, explained the obligations
[p.24] of [1967] GLR 17
they were taking on to these men. Alas! He has found out too late that this does not deter the fraudulent either.
I accordingly rule against the submissions made on behalf of the registrar.
DECISION
Objections overruled.
S. O.
