SUPREME COURT, ACCRA
DATE: 13TH JULY, 1962
BEFORE: KORSAH, C.J., VAN LARE AND ADUMUA-BOSSMAN, JJ.S.C.
CASES REFERRED TO
(1) R. v. Ludlow: Ex parte Barnsley Corporation [1947] K.B. 634; [1947] 1 All E.R. 880; (1947) L.J.R. 1063
(2) R. v. Paddington etc. Rent Tribunal, Ex parte Kendall Hotels Ltd. [1947] 1 All E.R. 448
(3) R. v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128; 38 T.L.R. 541, P.C.
NATURE OF PROCEEDINGS
APPEAL from the refusal of applications for an order of certiorari made to Charles, J., in the High Court, Accra. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
E. Akufo-Addo (with him E. N. P. Sowah) for the applicants.
H. V. A. Franklin for the respondents.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
This appeal is against a decision of the High Court, Accra, (Charles, J.) which dismissed the application of the applicants (the appellants in this court) for an order of certiorari to bring up to be quashed certain proceedings and orders made therein by the senior district magistrate, Accra, in relation to rent assessment orders made by the Accra Rent Assessment Committee acting under the Rent Control Ordinance.1(1)
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The learned judge before proceeding to deal with the questions of law involved in the application prior to his decision dismissing the application, set out the facts on which the application was based, and it seems necessary as well as convenient to adopt his statement of the facts, as follows: The applicants are six Indian firms trading in Accra and they were tenants of Sobhy Baksmaty (hereinafter called the landlord) in respect of various premises owned by Sobhy Baksmaty. In 1952 there was an application by Lokumal & Sons (one of the Indian firms) to the Rent Assessment Committee (hereinafter referred to as the committee) for an assessment of the rent of premises
occupied by them and on the 28th October, 1952, the committee after hearing both parties assessed the rent accordingly. The committee on its own motion and after giving notice to the five other tenants assessed the rent in respect of their respective premises on the 21st December, 1952. On the 23rd December, 1952, Sobhy Baksmaty applied to the committee for a case to be stated in respect of both assessments for the consideration of the magistrate pursuant to section 8 of the Rent Control Ordinance, 1952 (hereinafter referred to as the Ordinance). The application was considered by thecommittee and refused on the 9th February, 1953, on the ground that it was frivolous. Sobhy Baksmaty did not then apply to the magistrate under section 8 (6) of the Ordinance for the committee to show cause why it should not state a case but instead accepted the assessed rents until 1955, when
he applied to the committee to vary the rents and the committee after hearing the parties varied the rents on the 5th July, 1955.
Sobhy Baksmaty then requested the committee to state a case in respect of the new rents fixed and the committee did so. However Sobhy Baksmaty abandoned his appeal when it was discovered by him that his counsel, Mr. Obetsebi-Lamptey, had requested the committee to state a case in respect of the rents assessed in 1952. In September, 1958, Sobhy Baksmaty applied by way of motion to a magistrate under section 8 of the Ordinance for an order upon the committee to state a case in respect of the assessment made in 1952, and this application was opposed by the Rent Control Officer on the ground that the application was out of time. At the hearing of the motion the Rent Control Officer stated that the assessment was made on the 25th November, 1952, and that the application to state a case was not made until 23rd December, 1952, so the application was out of time as it contravened the provisions of section 8 (1) of the Ordinance.
However the magistrate granted the application by Sobhy Baksmaty and made the orders dated the 24th September, 1958, and 22nd October, 1958, directing the committee to state a case in respect of the two assessments of the premises in 1952. On the 24th January, 1959 and the 31st January, 1959, the two orders of the committee assessing the rents in 1952, were set aside.”
After setting out the facts as above he proceeded to direct his attention to the main question of law involved in the application and observed that, “The sole ground canvassed by the applicants for making the order absolute is that the magistrate had no jurisdiction to make the orders.” Thereafter he proceeded to address himself to the respective contentions of counsel for the parties and set the same out as hereunder: “Mr. Akufo-Addo contends (1) that the orders of assessment of 1952 which were varied in 1955 merged in the new order of 1955; (2) that Sobhy Baksmaty, having failed to exercise his right to ask for a case to be stated in respect of the assessments made in 1952 and having elected to apply for the rents to be varied, was estopped from asking for a case to be stated in respect of the assessments in 1952; (3) that there was no determination
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or order in respect of the assessments in 1952 in view of the order varying them in 1955; (4) that the magistrate had no jurisdiction to make the orders in respect of which an order for certiorari is sought.
Mr. Franklin contends (1) that the magistrate had jurisdiction to make the said orders; (2) that the decisions of the magistrate setting aside the assessments of 1952 were final and could not be questioned in a court of law except on the ground of jurisdiction; (3) that the order varying the rents in 1955 does not amount to a merger of the assessments in 1952.”
Before embarking on a consideration of these contentions, Charles, J. referred to section 8 of the Rent Control Ordinance, set out in extenso all the subsections thereof from (1) to (9) inclusive, then said this: “It is quite evident that a magistrate has jurisdiction to make an order compelling a committee to state a case in respect of an assessment if it [the committee] refuses or neglects to do so [on the application of an aggrieved party]. But the question I have to determine is whether a magistrate has any jurisdiction to compel a committee to state a case if (1) the application to state a case is not made within fourteen days of the assessment; (2) there is no order of assessment in existence when a magistrate makes an order for a case to be stated.”
He then purported to consider the questions he himself had posed and in a somewhat confused passage concluded in the following words: “When the inferior tribunal has jurisdiction to decide the matter, certiorari will not lie on grounds of appeal, simply on the ground that there is no right of appeal from the decision complained of. See R. v.
Rent Tribunal [1947] 1 All E.R. p. 449 . . . Therefore although the first three submissions of Mr. Akufo-Addo may be sound in law, and although the decisions of the magistrate may not commend themselves to this court, this would not be a good ground for granting an order of certiorari because I am not sitting as a Court of Appeal.”
This decision is challenged on two grounds, (1) that the learned judge was wrong in refusing the order of certiorari applied for against the magistrate’s orders which were made, on the undisputed facts of the matter, without jurisdiction; and (2) that the learned judge having accepted the contention that the senior magistrate acted in excess of his jurisdiction in making the orders complained of, should have granted the order of certiorari. This second ground would appear to have been taken as a result of the learned judge’s statement that “the first three submissions of Mr. Akufo-Addo may be sound in law,” but it is not sufficiently clear from the learned judge’s judgment that he accepted that the magistrate acted in excess of jurisdiction. The tenor of his judgment as a whole rather suggests that he did not accept it that the magistrate acted without jurisdiction. As to the first ground however I am of the opinion that it is well founded. I think that the learned judge in expressing his ultimate decision above set out, with due respect, digressed completely from the questions directly involved which he himself had posed, namely whether a magistrate has any jurisdiction to compel a committee to state a case where (1) no application to state a case had been made within fourteen days of the assessment; and (2) there is no order of assessment in existence at the time application is made to the magistrate to order the committee to state a case. To be in a position to determine correctly the main question which he admitted the applicants were canvassing, namely whether or not the magistrate had jurisdiction to make the orders complained of, as the basis of the applicants’ contention were the two questions which he
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concedes he was called upon to determine, he had of necessity to give a direct answer to those questions. It is surely obvious that if an application be not made to a tribunal, high or low, within the period of time prescribed by statutory enactment for submitting the application to it, it will be incompetent to the tribunal to entertain the application after the prescribed period. Equally, if, as prescribed by the Rent Control Ordinance an order for a case to be stated by a Rent Assessment Committee may be made by the magistrate only in respect of a subsisting assessment of the committee, and there happens to be no assessment subsisting, it will be incompetent to the magistrate to make an order for a case to be stated in respect of a vacated and no longer subsisting assessment.
The answers therefore to the two questions which the learned judge posed are obviously in the or negative, and had the learned judge not’ digressed from them but kept them steadfastly before him and considered and answered them directly, he would have had no difficulty as to what the answers should be, and also as to the legal position which should result from the answers.
It seems as though the learned judge was so carried away by the seductively interesting and fascinating discussions by such eminent and distinguished legal luminaries as Lord Esher, M.R., Lord Summer, and Lord Goddard, C.J. of the general learning concerning the law and practice of certiorari in certain cases to which he made reference in his judgment, that he forgot the questions he had put to himself. He expressed special reliance on R. v. Ludlow; Ex parte Barnsley Corporation2(2) concerning which he made the observation that, “The facts of the present application are almost similar to those in the case just referred to.” But, with great respect, I cannot see the similarity in the facts of the two cases. In that case the statute gave the right to a person who claims that he left an employer’s service and went straight to do war service, upon his application to the employer after his war service to take him back into employment being refused, to apply to a committee empowered to make orders against the employer, with a right of appeal to an umpire in respect of whatever order the committee might make. The respondent in the case who was refused by her employer, applied to the committee who dismissed her application as out of time, and thereupon she exercised her right and appealed to the umpire who ordered her reinstatement. In our case, as far as the applicants Lokumal & Sons and Hariram & Sons are concerned, no application for a case to be stated in respect of their respective assessments was made by the respondent, their landlord, at all; so that if the facts of this case have to be compared to the facts of that case, it would be as though the applicant in that case after being rejected by her employer, made no application to the committee at all. If that had been the case surely the umpire would have had no jurisdiction.
The next case mentioned R. v. Paddington Rent Tribunal, Ex parte Kendall Hotels Limited3(3) has no similarity whatsoever to this case, because the application for certiorari in that case was not grounded on absence of jurisdiction but, as clearly stated in the judgment of Lord Goddard, C.J., “on the ground that the tribunal have not considered certain matters which they ought or to have taken into account in determining whether or not a rent of £5 a week … was a fair rent.” The learned Chief Justice therefore pointed out that, “Certiorari is a very special remedy, and when it is sought in order to bring up the order of a tribunal
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the question which has to be considered is whether or not the tribunal were acting within their jurisdiction.” Charles, J. then passed on to the case of R. v. Nat Bell Liquors Limited4(4) and from the impressively erudite and lengthy discourse of Lord Summer on the law and practice of certiorari cited a passage which, with respect, seems completely irrelevant to the legal question involved in this case.
Ironically enough, Lord Summer’s judgment did contain an enunciation of the principle applicable to this case as follows:5(5) “It will be convenient to state at the outset that none of the ordinary grounds for certiorari, such as
informality disclosed on the face of the proceedings, or want of qualification in the justices who acted, are to be found in the present case. The charge was one which was triable in the Court which dealt with it, and the magistrate who heard it was qualified to do so. . . . No conditions precedent to the exercise of his jurisdiction were unfulfilled.”
I have stressed this last sentence to draw attention to its relevancy and pertinency. This significant passage unfortunately escaped the notice of the learned judge, and so, as already indicated, he missed the outstanding point in the case, namely, whether or not, to borrow the more impressive language of Lord Sumner, “conditions precedent to the exercise of his jurisdiction were unfulfilled.” The applicants say “Aye, they were unfulfilled” and the respondent is unable to controvert the applicants’ assertion. The applicants say that “the conditions precedent to the exercise of his jurisdiction were unfulfilled” because (1) in the case of Lokumal & Sons’ assessment on the 28th October, 1952, and Hariram & Sons’ on the 9th December, 1952, no application was made within fourteen days, after the assessment, for a case to be stated as required by the Rent Control Ordinance, 1952, s. 8; and (2) in
the case of the assessments of all the other applicants on the 9th December, 1952, although application for a case to be stated was made on the 23rd December, 1952, within time which however was refused as frivolous on the 19th February, 1953, by the committee, the respondent-landlord took no further step but accepted the said assessment of the 9th December, 1952, and acted on it till July, 1955, when he applied and had the whole reviewed and vacated and new assessments made which were those subsisting when he applied for an order from the magistrate in 1958. These facts being irrefutable, it seems to me the contention is unanswerable that the conditions precedent to the exercise of jurisdiction were unfulfilled.
Learned counsel for the respondent has not been able to controvert the facts but has argued that the Ordinance has conferred on the magistrate the privilege of determining the question of the existence of those conditions or circumstances which clothe him with jurisdiction, and has also provided that his decisions shall be final, and therefore this certiorari application cannot be made a cloak to conceal what is in reality an appeal from the magistrate’s decision. He expressed reliance on R. v. Ludlow already cited. I have, however, pointed out what I think is the difference between that case and this case, and I would only add that I do not see anything in section 8 of the Ordinance which justifies learned counsel’s contention that it is for the magistrate to decide if the conditions exist which bring his jurisdiction into play. The Ordinance is straightforward enough and has provided that the magistrate’s jurisdiction
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comes into play only where a party alleging himself aggrieved by an assessment has applied to the committee for a case to be stated and that has been refused. That condition without doubt, not having been fulfilled, it follows that the magistrate had no jurisdiction to exercise in respect of an unchallenged assessment. Equally, when the assessment no longer exists because it has for one reason or another been varied, it would seem to be but commonsense that it is incompetent to make an order for a case to be stated in respect of a non-existent assessment.
For these reasons the learned judge was, in my opinion, wrong in refusing the order of certiorari sought I would therefore allow the appeal and set aside his order, and grant the order sought.
DECISION
Appeal allowed.
Order of certiorari granted.
