REPUBLIC v. CHIEFTAINCY SECRETARIAT AND ANOTHER; EX PARTE ADANSI TRADITIONAL COUNCIL [1968] GLR 736

DIVISION: HIGH COURT, KUMASI

DATE: 31 JULY 1968

BEFORE: ANNAN J.

NATURE OF PROCEEDINGS

RULING on the application by the applicants for an order of mandamus to issue against the respondents. The facts are fully set out in the ruling.

COUNSEL

Appiah-Menkah for the applicants.

J. C. Amonoo-Monney, State Attorney, for the respondents.

JUDGMENT OF ANNAN J.

In this application for an order of mandamus directed to the Chieftaincy Secretariat and the Commissioner responsible for Chieftaincy Affairs the applicants, the Adansi Traditional Council, rely on section 1 (2)(a) of the Chieftaincy Act, 1961

[p.738] of [1968] GLR 736

(Act 81), and ask for the order to go to the respondents for their compliance with the section.

The facts upon which the application is based are not in dispute. It is clear from these facts that in 1963 the Fomena Traditional Council destooled two chiefs of Fomena, the Nifahene Nana Takyi Mensah and the Kyidomhene Nana Asiedu Bonkuro. The traditional council reported the destoolment in accordance with the statutory provisions of the Chieftaincy Act and the Chieftaincy Regulations, 1963 (L.I. 320). The report first went to the district commissioner and then to the regional commissioner. It would appear from the facts that the report of the destoolment did not in 1963 or at any time thereafter reach the Minister responsible for Chieftaincy Affairs to enable him to take any action thereon. Nothing seems to have been done by the Fomena Traditional Council to pursue the matter of the destoolment of the two chiefs and it would appear as if for some reason not apparent to me, the matter of the destoolment was allowed by all parties concerned to lapse. The next thing that happened was in 1967. In August of that year the Adansi Traditional Council, which had by then replaced the Fomena Traditional Council, confirmed the said destoolments and then made their own report to the district administrative officer in accordance with L.I. 320. That official, who had taken over from the previous district commissioner brought the matter to the notice of the affected chiefs and then he in turn reported to the regional administrative officer of Ashanti. That officer by a letter dated 28 November 1967 submitted his report to the Chieftaincy Secretariat and it is admitted that the secretariat received the report in December 1967. No appeal was at any time lodged by either the Nifahene or Kyidomhene either in 1963 or in 1967 and there is no dispute that the time for appealing has passed. It is I think clear from the papers put in evidence that the respondents have received the report of the destoolment and it is also reasonably clear that no decision has been taken by them in terms of section 1 (2) (a) of the Chieftaincy Act either to withdraw recognition from the two chiefs or to refuse to withdraw recognition from them. The object of the present application then is to compel the respondents to take a decision one way or the other—to withdraw recognition or to continue to recognise.

Since the respondents are a Department of State and a Minister of State the first consideration is whether mandamus could go to either of them. The rule as I understand it is that the courts will not order mandamus to go to the State or servants of the State acting as such to carry out duties laid on the State. The common law rule is that no order of mandamus will lie to the Crown and an order

[p.739] of [1968] GLR 736 will not lie against a Secretary of State in his capacity as an agent for the Crown as in that capacity he is responsible to the Crown alone and is under no legal duty towards a subject: see Halsbury’s Laws of England (3rd ed.), Vol. 11, para. 184. The rule is that persons acting as servants of the State are exempt from control by the court by means of the order of mandamus and no such order can issue against them to do any act within the scope of the duties discharged by them on behalf of the State. It is, however, recognised that whenever a person, whether filling an office under the State or not, has a statutory duty of a public nature towards another person such as to do an act or to make an order, mandamus will lie to compel performance of the duty at the suit of any person aggrieved by the refusal to perform that duty unless another remedy is clearly indicated by the statute. The applicant for the order must have a right in him to the performance of a legal duty by the party against whom the mandamus is sought. It must therefore be shown by the applicant who requests the court to compel the performance by mandamus of a duty that there is such a duty imposed by the statute upon which he relies, that the duty is of a public nature and that there is a right in the applicant to enforce the performance of the duty. These conditions precedent to the grant of the order will be strictly enforced where the respondents, as in this case, are either a Department of State or a Minister of State. Again it is the law that the court will not compel any person to exercise a power which is merely permissive and which does not impose a duty or an obligation. Having regard to the status of each respondent it is clear to me that for the motion to succeed it must be shown that either or both of them are under a legal duty imposed by section 1 (2) (a) of the Chieftaincy Act, that there has been a demand to perform that duty and a refusal to carry out their duty under the Act.

The first point to make is that nowhere in the Act as a whole or in the particular section relied upon by the applicants is any duty of any sort cast on the Chieftaincy Secretariat to perform any acts for the withdrawal of recognition from a chief. The relevant provision refers to the Minister specifically and whether or not any duty is created by section 1 (2) (a), the secretariat as distinct from the Minister is not caught by the section. Again it has not been shown that there is any other duty on the secretariat independently of the statute and in respect of which mandamus will go to them. Since mandamus will not lie generally against the State or an officer or Department of State acting for the State, it is necessary that where an application is made in respect of a Department of State or for [p.740] of [1968] GLR 736 that matter a Minister of State the applicants point to a clear statutory duty which enjoins performance of the acts in respect of which the application is made. No such duty has been shown to lie in the Chieftaincy Secretariat and the order consequently cannot be made and mandamus will not go to them.

The case in respect of the Commissioner responsible for Chieftaincy Affairs is on a different footing. Clearly section 1 (2) (a) concerns him directly and the first question to determine in respect of him is whether any duty is cast on him in the first place. The section relied upon by the applicants reads as follows:

“1. (2) The Minister may by executive instrument at any time withdraw recognition from a Chief if—

(a) the Chief has been destooled and his appeal against the destoolment has been dismissed or the period allowed for appealing has elapsed without an appeal having been brought.”

Does this provision cast a duty on the Minister? The first observation to make is that the word “may” when used in an enactment made after the passing of the Interpretation Act, 1960 (C.A. 4), is by virtue of section 27 of that Act to be construed as permissive and empowering and by virtue of section 1 of the Interpretation Act each provision of that Act applies to every enactment except in so far as the contrary intention appears in that enactment. Looking at the whole of section 1 of the Chieftaincy Act it seems to me clear that there is no mandatory duty cast on the Minister in any case to withdraw recognition from a chief. That section makes it clear that the statutory status of a chief as distinct from whatever status he has under customary law, does not depend solely on his nomination, election and installation as a chief or his deposition from that office according to customary law. For the purposes of the statute the recognition or withdrawal of recognition by the Minister is a necessary element in the consideration of the status of a chief. If that is the case then it should be quite clear that a person who has been installed and recognised as a chief and who is subsequently destooled customarily does not in the eyes of the statute cease to be entitled to recognition as a chief only by virtue of his destoolment. After any such destoolment, the Minister still has to decide whether or not to withdraw recognition from the person concerned and clearly in that connection the decision is one within his discretion, and he cannot be compelled to recognise or to withdraw recognition. I see nothing in the Act to the contrary and I am bound to give effect to section 27 of the Interpretation Act and to construe the word “may” in section 1 (2) (a) of the Chieftaincy Act as permissive. [p.741] of [1968] GLR 736

If then the section does not place any duty on the Minister to withdraw recognition does it place any other duty on him? Such other duty if any can arise by implication and I do not think there is any difficulty in saying that the Minister is bound to entertain any report of a destoolment made to him in proper form and to consider it. He is also, in my view under a further duty to take a decision one way or the other and to notify the parties interested of his decision. Clearly however there is no provision in the statute which, in respect of the exercise of the power which resides in the Minister by virtue of section 1 (2) (a) can operate to tie him down to any specific period of time within which to act. The use of the words, “at any time” in the provision clearly was meant to give the Minister time within which to give his consideration to the matter. Certainly he would need time to consider his position and there may well be considerations of policy and of expediency involved in his assessment. I have given consideration to the question whether on the proper construction of section 1 (2) (a) the Minister has unlimited time within which to come to a decision one way or the other. In my judgment it would be doing violence to the language of the section to import into it any requirement that a decision should be made within a reasonable time or some such qualification. In ordinary human experience a Minister of State would require reasonable time within which to perform any public duty where no specific time limit is laid down and what is reasonable in any given case would depend on the facts of that case and no general rules can be laid down. Where however words have been used indicating that the legislature intended to leave it in the Minister’s discretion when to perform the relevant duty then in my view the court ought not to put itself in place of the Minister and to decide what period of time is reasonable. In any case there is evidence before me that the respondents have considered the report of the destoolment and that after initiating correspondence on that matter have come to a decision in the light of certain matters brought to their knowledge to defer action, on the destoolment report for some time as the matter requires consideration: see exhibit 4. That decision was taken on 5 February 1968. Some of the matters which the respondents have said they wish to consider further are the circumstances in which the 1963 destoolment of the two chiefs was confirmed in 1967, and also the effect of that confirmation and then the undisputed fact that these same chiefs have brought destoolment charges against the president of the applicant council. I do not see that I am in any position to say that these are not relevant matters to be considered by the second respondent in the process of determining which way to exercise discretion. I should think that a judicial officer who does not [p.742] of [1968] GLR 736 claim to be versed in the labyrinthine intricacies of policy decisions of a constitutional nature by the executive is not the best person to impose a time limit on such deliberations.

Having regard to the clear language of section 1 (2) (a) and in the light of exhibit 4, I am compelled to say that there has been no positive refusal or conduct amounting to a refusal, on the part of the second respondent to perform the duty cast on him by section 1 (2) (a) to take a decision one way or the other. It is clear law that the court will not order mandamus to go where there has been no demand and refusal to perform the public duty enjoined by statute. In these circumstances I refuse the application.

DECISION

Application refused.

S. K. T.