REPUBLIC v. CIRCUIT JUDGE, HO; EX PARTE AGBO [1972] 1 GLR 287
HIGH COURT, HO
Date: 14 JANUARY 1972
BEFORE: ATA-BEDU J.
CASES REFERRED TO
(1) Akrasi v. Mposo, Court of Appeal, Cyclostyled Judgments, January—June 1958, p. 160.
(2) Doe d. Rochester (Bishop of) v. Bridges (1831) 1 B. & Ad. 847; 9 L.J.K.B. (o.s) 113; 109 E.R.
1001.
(3) R. v. Copper Miners of England Co. (1850) 16 L.J. (o.s) 148.
(4) Rorke v. Errington (1859) 7 H.L. Cas 617; 5 Jur. (N.S.) 1227; 11 E.R. 246, H.L.
(5) Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 C.B. (N.S.) 336; 28 L.J.C.P. 242;
33 L.T. (o.s) 366; 5 Jur. (N.S.) 1104; 7 W.R. 464; 141 E.R. 486.
(6) Sun Life Assurance Co. of Canada v. Jervis [1944] A.C. 111; [1944] 1 All E.R. 469, H.L.
(7) Timitimi v. Amabebe (1953) 14 W.A.C.A. 374.
(8) Obeng v. Ampofo, Court of Appeal, Cyclostyled Judgments, January—June 1958, p. 143.
NATURE OF PROCEEDINGS
APPLICATION for an order of certiorari to quash an order of the circuit judge, Ho. The facts are fully set out in the ruling of Ata-Bedu J.
COUNSEL
Doku for the applicant.
Respondent not represented.
JUDGMENT OF ATA-BEDU J. The defendant-applicant (hereinafter referred to as the applicant) has brought this notice of motion under
Order 59, r. 4 (1) and (2) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), for an order of certiorari to have the proceedings and the order of the Circuit Court, Ho, dated 30 April 1971 brought up before this court to be [p.289] of [1972] 1 GLR 287 quashed on the grounds stated in the affidavit of the applicant and the statutory statements and the order accompanying this application. Leave to issue this notice of motion was granted on 8 July 1971 and not on 21 October 1971 as alleged by counsel for the applicant during his argument.
The facts culminating in this application as disclosed in the copy of the statement exhibited in the
applicants affidavit as A and in the argument of counsel for the applicant are that at the instance of the plaintiff-respondent (hereinafter referred to as the respondent) and others, proceedings under the Chieftaincy Act, 1961 (Act 81), were commenced at the Asogli Traditional Council, Ho, against applicant then as the Fiaga of Goviefe under the stool name of Togbet Sakrafo IX; the respondent was then acting in his capacity as the head of the Agbo family of Goviefe Kwahu. The proceedings terminated on 6 September 1968 in favour of the respondent and the others. The applicant was ordered by the council to pay assessed costs of ¢442.10 to the respondent and the others on his side. The applicant was later destooled .
Failure of the applicant to pay the said costs of ¢442.10 prompted the respondent to institute an action by a writ of summons at the Circuit Court, Ho, for recovery of the same. The statement of claim accompanying the writ is exhibited in the applicant’s affidavit as A. Apart from the statement marked A no other documents were filed by the respondent. On 16 February 1971 an appearance under protest was entered followed by an application alleging that the circuit court had no jurisdiction to entertain the suit and that the writ was irregular within section 46 of the Chieftaincy Act, 1961 (Act 81). On 30 April 1971 the Circuit Court, Ho, gave a ruling dismissing the application with costs of ¢10.00 to the respondent and ordering the case to proceed. Exhibited as B in the affidavit of the applicant is the certified copy of the said ruling. It is these proceedings together with the said ruling which are sought to be removed and to be quashed by this court. As rightly contended by counsel for the applicant, this application is of considerable interest in point of law. The endorsement on the respondent’s writ of summons is in the following words:
“The plaintiff’s claim is for ¢442.10 being costs awarded in favour of the plaintiff against the defendant by the Asogli Traditional Council held at Ho on the 6th day of September, 1968, which costs the defendant has failed or refused to pay or in favour of the plaintiff.”
It would appear that the plaintiff’s action was commenced in January 1971. The contention on behalf of the applicant is that the sum of ¢442.10 claimed became due as a result of Chieftaincy proceedings and, therefore, the procedure for the enforcement of it as laid down in section 46 (2) of the Chieftaincy Act, 1961 (Act 81), must be strictly adhered to. It is submitted that the institution of the action by the respondent by a writ of summons is not in compliance with the said section 46 (2).
Section 46 of the Chieftaincy Act, 1961 (Act 81), deals with execution of judgments and orders of a
traditional council and is couched in the [p.290] of [1972] 1 GLR 287 following words: [His lordship here read the sections as set out in the headnote and continued:] The ruling which is referred to runs thus:
“The main substance of the defendant’s application rests on the provisions of section 46 of the Chieftaincy Act, 1961 (Act 81). That section as counsel for the plaintiff has rightly explained sets out in logical sequence how any judgment or order of a traditional council may be enforced by seizure and sale of the property of the person condemned therein. Subsections (2) and (3) of section 46 lay down the procedure to be adopted for such enforcement and the forum in which the enforcement can be made. It is clear from the provisions that the power to enforce is given to the traditional council itself. As counsel for the plaintiff has pointed out to the court no rules are laid down as to how an interested party can move the traditional council to enforce its orders. It is in this context that the provisions under section 46 of the Chieftaincy Act, 1961 (Act 81), cannot be exclusive so as to take away the right of an interested party in commending an action in court to enforce the order of the traditional council. It should be noted that section 46 of Act 81 is itself limited in its scope in
that it deals with the execution of the order of the traditional council by seizure and sale of the property of the person condemned. I am satisfied that section 46 of Act 81 which lays down a simple and less expensive mode of executing the orders or judgment of the traditional council cannot defeat the plaintiff’s right to commence an action in regard to the costs awarded, if he so wishes….”
The applicant complains that this decision or ruling is wrong because the respondent did not forward a copy of the said judgment or order to the court for execution to issue. The respondent therefore cannot take a fresh action to enforce the judgment or order of the traditional council. It is contended that, in the absence of a copy of the judgment or order and the request to the circuit court for execution, that court had no jurisdiction. With due respect to counsel, I am unable to find any provision in section 46 to the effect that a person in whose favour an order or judgment is made or pronounced is to forward a copy of the said order or judgment to the court for execution. This is the obligation imposed by the section upon the council itself. Reading through the case of Akrasi v. Mposo, Court of Appeal, Cyclostyled Judgments, January — June 1958 at p. 160, I find that a formal letter of request signed by the president of the traditional council to the court together with the necessary fees for execution is sufficient. Counsel for the applicant does not point out the errors appearing on the face of the record but submits that if there is an obvious error on the face of the record this court can quash it; counsel further submits that to find out whether or not there is an error, one has to look at the rule or principle on which the learned circuit judge acted.
In the exercise of its supervisory jurisdiction in entertaining applications for certiorari the High Court is empowered to give effect to existing [p.291] of [1972] 1 GLR 287 law. In the present case the existing law to be considered is the procedural rule specified in section 46 of the Chieftaincy Act, 1961 (Act 81), relating to the enforcement of the award made by the order of the Asogli Traditional Council. As against this, the law relating to the action commenced by writ of summons by the respondent will also have to be considered.
In this application the grounds urged are: (1) jurisdiction of the circuit court, and (2) error or errors on the face of the record. It is submitted by counsel for the applicant that the circuit court had no jurisdiction to entertain the suit commenced by the writ of summons and that the writ was irregular in view of section 46 of the Chieftaincy Act, 1961 (Act 81). Counsel for the respondent contends that counsel for the applicant has not disclosed any sufficient ground to justify the application for certiorari. He submits that in order to succeed, the applicant must prove to the court that there has been a conspicuous or obvious error on the face of the ruling, order or judgment in respect of which certiorari is being sought. This, he says, has not been done. By this contention, I do not think I am prohibited from looking at the record and finding out whether or not there are errors appearing on the face of the record.
The next contention is that in his ruling, the learned circuit court judge has recorded not his opinion as regards section 46 of the Chieftaincy Act, 1961 (Act 81), but what counsel for the applicant has
established is his own interpretation of section 46 instead of pointing out any particular error on the face of the ruling. I do not find anything wrong with counsel for the applicant establishing his own
interpretation of section 46 as against that of the learned circuit court judge, for the purpose of the
difference is to find out whether or not the words are ambiguous and whether or not the intention of the framers of the Act or the intendment and spirit of the section are obscure. Certiorari lies not only for error on the face of the record but also for want of jurisdiction.
Counsel for the respondent has rightly conceded that the learned circuit judge, in his ruling or decision, made no mention of any authority in support of his view that the respondent has the right to issue the writ, but submits that the learned circuit judge appeared to rely on the principle that the cause of action for which the writ of summons was issued arose out of a civil right. With respect to counsel, this submission cannot be sustained. If what he has submitted was in the contemplation of the learned circuit judge it was open to him to incorporate that in his ruling since this aspect of the matter is the basis for the objection raised before him. The stark fact is that he had no authority to support his view, being fully cognisant of the fact that the cause of action arose out of the proceedings under sections 15 and 43 to 47 of the Chieftaincy Act, 1961 (Act 81). The respondent’s right to the sum claimed by his writ of summons was conferred by section 46.
The ground for this application which I first have to consider is the error on the face of the record, if any. Record in this case, includes the [p.292] of [1972] 1 GLR 287 the writ of summons, the statement of claim and the ruling or decision and the reasons incorporated therein. Counsel for the respondent has contended that the learned circuit judge explained in his ruling that he considered that although section 46 prescribe the mode of executing orders or awards made by a traditional council, the section provides only one of the many ways in which the awards or orders may be
executed. The general provisions as regards the modes or methods for enforcement of judgments and
orders are contained in Order 42 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and also in the practice rules of the district courts. There is no rule under this order or in any other enactment which provides that a party to whom a judgment or order directs payment of money shall or may enforce such a judgment or order by instituting a fresh action by a writ of summons instead of or as alternative to the issue of execution against the goods and chattels of the debtor or resort to any of the other modes or methods.
In the present case the most usual method or mode of execution is what is provided in section 46 (1) in accordance with the general provisions under Order 42 referred to above, and there is no room for any argument against its propriety or validity. The learned circuit judge’s ruling or decision that section 46 cannot defeat the plaintiff ‘s right to commence an action in regard to the costs awarded, if he so wished, is therefore, erroneous in law. I am fortified in my view by the words of Lord Tenterden in the case of Doe d. Rochester v. Bridges (1831) 1 B. & Ad. 847, as follows: “… where an Act creates an obligation, and enforces the performance in a specified manner … that performance cannot be enforced in any other manner.” I have not, in my research, come across any case such as this or any other case in which a writ of summons has been issued against the person condemned and mulcted in costs for the recovery of the costs instead of proceeding to execution. The applicant’s indebtedness to the respondent arose out of the chieftaincy proceedings under sections 15 and 43 to 47. The order of the traditional council for the award, not having been set aside or invalidated, remains in force and is conclusive proof of the existence of the applicant’s liability; the instrument for its enforcement is expressly provided by section 46 which imposes a statutory obligation on the council and prescribes the mode of enforcing payment of the award. This section cannot be disregarded and its effect whittled down.
The non-compliance with this provision or the non-performance of this obligation cannot be employed as the basis for a fresh action by a writ of summons. The legal right which resides in the respondent is the right performance of the legal duty or obligation by the traditional council which in the event of failure on the part of the council either by design or inadvertence, is conferred by Order 59, r. 2 (1) of the Supreme [High] Court (Civil Procedure) Rules, 1954. The view expressed by the learned circuit judge, relying on the submission of counsel for the respondent that “no rules are laid down as to how an interested party can move the traditional council to enforce its orders” is well-grounded; but [p.293] of [1972] 1 GLR 287 his view that the provisions under section 46 of Act 81 cannot be exclusive so as to take away the right of an interested party in commencing an action in court to enforce the order of the traditional council is erroneous. This principle propounded by him could have stood against any challenge if he had supported it with any authority.
The only control to which the traditional council is subject in such a situation is the power which the High Court may exercise by way of mandamus to compel the carrying out of its obligation imposed by section 46 (2) of Act 81 and the right of the respondent to resort to the exercise of this power of the court is provided in Order 59, r. 2 (1) above mentioned. The scope of this rule is set out at p. 1725 of the 1965 Annual Practice under rule 3 (1) of Order 59 where the order is defined as follows: “An order of mandamus is an order ‘requiring an act to be done’ . . . It may be made against a judicial tribunal to set it in motion.” In the case of R. v. Copper Miners of England Co. (1850) 16 L.J. (o.s.). 148, it was held that where there is a legal right and the law affords no other sufficient legal remedy a writ of mandamus is the proper remedy. Section 46 of Act 81 does not provide any other specific legal remedy but, relying on the preceding principles of law, my opinion is that resort to the provision in rule 2 (1) of Order 59 is the appropriate action to be taken by the respondent. The court will only enforce the performance of statutory duties by public bodies on the application of a person who can show that he has a legal right to insist on such performance. The institution of a fresh action to enforce payment of the costs awarded is not what the legislature intended and, therefore, it is irregular. It will be wrong to regard it as the proper remedy for the enforcement.
The enforcement of the order is the taking of steps to issue the process of execution. But the section does not empower the council to issue execution. The taking of steps is the responsibility of the court to which the request is to be made by the council. This request, in my opinion, amounts to a removal of the order or judgment to the court for enforcement. The view held by the learned circuit judge, therefore, that the power to enforce the judgment or order is given to the traditional council is also erroneous.
I now advert to the ground of jurisdiction of the learned circuit judge to inquire into the matter set out in the writ of summons and the statement of claim. “Jurisdiction” is defined at p. 350, para. 822 of Halsbury’s Laws of England (3rd ed.), Vol. 9 as “the authority which a court has to decide matters that are litigated before it or to take cognisance of matters presented in a formal way for its decision.” It has no jurisdiction beyond what the legislature has given it (see Rorke v. Errington (1859) 7 H.L. Cas. 617, per Lord Wensleydale). An instance of a case in which the common law remedy is intended to be excluded is, “Where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.” See Wolverhampton New Water Works Co. v. Hawkesford (1859) 141 E.R. 486 at p. 495 per Willes J. [p.294] of [1972] 1 GLR 287
Execution, the last step in the inquiry of the dispute or matter between the parties, is the method of
enforcing or satisfying the decision or judgment and, therefore, in this present case a fresh action cannot be commenced in purported pursuance of the applicant’s liability for the sum of ¢442.10 created by section 43 to 47 of the Chieftaincy Act, 1961 (Act 81), when the Act has not granted and did not intend to grant the right action of that kind. What is of significance to observe is that there was no issue as to the liability between the applicant and the respondent at common law to be tried by the learned circuit judge.
The applicant’s indebtedness created by Act 81 does not appear to be in dispute. The action before the learned circuit judge, therefore, cannot be heard. In support of my view, I rely on the case of Sun Life Assurance Co. of Canada v. Jervis [1944] A.C. 111, H.L. in which it was held that an appeal will not be heard where there is no issue between the parties to be decided.
Counsel for the respondent has represented to this court that the learned circuit judge came to the
conclusion on consideration of section 46 that this section has not the effect of taking away the right of the citizen to have recourse to the court for redress and in this particular case, to order the applicant to pay to the respondent the costs claimed. On this submission I have to point out that unless and until the judgment or order of the council is set aside, it is binding on the parties; it is subsisting and the circuit judge has no authority to pronounce another judgment for the same amount. The inferior court is not presumed to have any jurisdiction but that which is expressly provided (see Timitimi v. Chief Amabebe (1953) 14 W.A.C.A. 374). The circuit judge would have been competent only if a request had been made to him for execution as envisaged under section 46 (2) of Act 81. In my opinion, the learned circuit judge misdirected himself as to the effect of section 46 and came to the wrong conclusion. His decision to proceed to hear the case is erroneous in law because it is made contrary to the general law regarding enforcement of judgments and orders and it is a violation of the principle laid down in section 46. The proceedings were improperly before the court and I find no principle of law or any authority on which the learned circuit judge acted. The interpretation put upon section 46 fails to give effect to its purpose.
The contention of counsel for the respondent that the applicant should have appealed if dissatisfied with the interpretation put on section 46 by the learned circuit judge cannot be sustained. Failure to appeal in such cases has been held not fatal; certiorari and appeal are not alternative and can be exercised by an aggrieved person though not contemporaneously, see Obeng v. K. Ampofo, Court of Appeal, Cyclostyled Judgements, January-June 1958 at p. 143.
For the above reasons I have come to the conclusion that on the face of the record there are errors in law and that the circuit judge has no jurisdiction. I therefore order that the writ of summons, the statement of claim and the ruling of the circuit judge dated 30 April 1971 be brought [p.295] of [1972] 1 GLR 287 up for the purpose of being quashed and the same are hereby quashed. Costs of ¢30.00 to the applicant.
DECISION
Application granted.
Order of circuit judge quashed.
