HIGH COURT, ACCRA
Date: 4 APRIL 1974
ABBAN J
CASES REFERRED TO
(1) Asamoah v. The Republic [1972] 1 G.L.R. 117.
(2) Commissioners for Special Purposes of Income Tax v. Pemlse [1891] A.C. 531; 61 L.J.Q.B. 265; 65 L.T. 621; 55 J.P. 805; 7 T.L.R. 657, H.L.
(3) R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1 W.L.R. 1150; [1953] 2 All E.R. 717; 117 J.P. 440; 79 S.J. 590.
(4) Mould v. de Vine [1962] 1 G.L.R. 533.
(5) Ex parte Napier (1852) 18 Q.B.D. 692; 21 L.J.Q.B. 332; 17 Jur, 380; sub nom. R. v. East India Co.; Ex parte Napier 19 L.T. (o.s) 214.
(6) R. v. Commissioners of Inland Revenue; In re Nathan (1884) 12 Q.B.D. 461; 53 L.J.Q.B. 229; 51 L.T. 46; 48 J.P. 452; 32 W.R. 543, C.A.
(7) R. v. Lords Commissioners of the Treasury (1872) 7 Q.B.D. 387; 41 L.J.Q.B. 178; 26 L.T. 64; 36 J.P. 661; 20 W.R. 336; 12 Cox C.C. 277.
(8) R. v. Payn (1837) 6 Ad. & El. 392; 1 J.P. 37; 1 Jur. 54; 112 E.R. 150.
NATURE OF PROCEEDINGS
APPLICATION for an order of mandamus to compel the Controller and Accountant-General to authorise the payment of sums of money due to the applicant and endorsed on a treasury draft. The facts are set out fully in the ruling.
COUNSEL
C. A. Lokko for the applicant.
C. K. A. Anson, Senior State Attorney, for the respondent.
JUDGMENT OF ABBAN J
The application is for an order of mandamus under Order 59, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to compel the Controller and Accountant-General, the respondent herein, to authorise payment of certain sums of money due to the applicant. The applicant is a limited liability company. It performed some services for the Eastern Regional Administration and for those services the said Regional Administration became indebted to the applicant in the sum of 091,845.00.
In November 1973, the Eastern Regional Administration sent a treasury draft of the order of 091,845.00 to the applicant. It is the case of the applicant that despite repeated requests, the respondent has refused to authorise payment of the said amount of 091,845.00 or any part thereof.
In paragraph (5) of the affidavit sworn to by the general manager of the applicant company, the reasons for the said refusal have been set out. The paragraph reads as follows:
“(5) That the Controller and Accountant-General’s refusal to authorise payment is based on a claim of the sum of 0100,000.00 from my company for which my company does not admit liability and that the said claim is the subject of suit No. 162/1972 entitled The Attorney-General versus Dizengoff (West Africa) Limited awaiting a hearing date before the High Court.”
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The said general manager, on behalf of the applicant company, further stated that the amount of 091,845.00 is “in respect of an entirely different transaction and has no connection whatsoever with the said claim of 0100,000.00” now the subject-matter of suit No. 162/1972. The purpose of the present application, as already stated, is therefore to compel the respondent to go ahead and give the necessary authorisation for the payment of the 091,845.00, despite the pendency of the said suit.
Learned counsel for the applicant contended that the respondent has no right to refuse payment. For, once the treasury draft has been issued, a statutory duty is cast on the respondent to authorise payment. Counsel submitted that the refusal of the respondent was also unlawful since the refusal was not based on any of the circumstances listed in paragraph 19 (5) of the Financial Administration Decree, 1967 (N.L.C,D. 165). Counsel again referred to paragraph 42 (1) of the said Decree, and argued that even though the respondent, in his belated supplemental affidavit, stated that the “Principal Secretary, Ministry of Finance, had recently given directives to suspend payment,” there is nothing to show how recent the so-called directives are; and in all probability, no such directives were ever given to the respondent. In any case, submitted counsel, since it is established that the government, through the Eastern Regional Administration, is indebted to the applicant, and the question whether or not the applicant is also indebted to the government is a matter yet to be decided by the High Court, the Principal Secretary, Ministry of Finance, did not properly exercise his discretion in giving those directives to the respondent. Consequently, the respondent cannot seek shelter under paragraph 42 (1) of the said N. L.C. D. 165, and the order of a mandamus can issue.
The application was resisted by the respondent. The learned senior state attorney, who appeared for the respondent, submitted that the application is misconceived. He contended that if the applicant genuinely believed that the government through the Eastern Regional Administration, was indebted to the applicant, the appropriate procedure which the applicant ought to have adopted was to have issued an ordinary writ of summons against the Attorney-General to recover that debt, and not to come by way of mandamus. Counsel referred also to sections 13 (2) and 15 (4) of the State Proceedings Act, 1961 (Act 51), and further submitted that under those sections this court has no jurisdiction to entertain the present application.
On the merits of the application, learned counsel for the respondent submitted that the applicant has not been able to show that a specific statutory duty has been imposed on the respondent to authorise payment of moneys owed to the applicant by any regional administration or by the government. Counsel, however, referred to the affidavit of the respondent filed on 7 March 1974, and contended that quite apart from the absence of statutory duty, the respondent was directed by the Principal Secretary, Ministry of Finance “to suspend authorisation of the payment
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of that amount,” and that the said Principal Secretary properly exercised his powers and discretion under section 42 (1) of the said Financial Administration Decree, 1967 (N.L.C.D. 165). Counsel therefore submitted that the respondent in refusing to authorise payment was only obeying the instructions or orders from his superior officer and mandamus should not issue against the respondent.
I will first dispose of the argument based on sections 13 (2),and 15 (4) of the State Proceedings Act, 1961 (Act 51). If the contention of learned counsel for the respondent is right it will mean that by those sections no prerogative writs can ever issue against any public servant acting in his official capacity. In my view, those sections ought to be given a very narrow interpretation. Section 13 (2) reads as follows:
“13. (2) The court shall not in any civil proceedings grant any injunction or make any order against a servant of the Republic if the effect of granting the injunction or making the order would be to grant relief against the Republic which could not have been obtained in proceedings against the Republic.”
The section is concerned with injunction orders and any other order which, if made, will in effect be the same as an injunction order; or may amount to granting a remedy against the Republic, which remedy the plaintiff or the applicant could not have “obtained in proceedings against the Republic.”
In the first place, the order of mandamus is not equivalent to an order of injunction. Secondly, the order of mandamus, being sought in this particular case, if granted, will not in any way affect the Republic. Before the application was filed, the government, acting through the Eastern Regional Administration, had already acknowledged the debt and had, in fact, issued a treasury draft in respect thereof. To the government therefore the money could be paid. Thus, the applicant is contending, whether rightly or wrongly, that it is now the statutory duty of the respondent to give formal authorisation for payment; and according to the applicant, the statutory duty could completely be performed by the respondent who did not require any further concurrence of the government. In a situation like this, I think the order of mandamus, if granted against the respondent, will not adversely affect the Republic, and will not be tantamount to granting a “relief against the Republic,” as contemplated by the provisions of section 13 (2).
The other objection to the court’s jurisdiction, founded on section 15 (4) of the said Act 51, is also misconceived. The section provides that:
“15. (4) Save as aforesaid no execution or attachment or process in the nature thereof shall be issued out of any court for enforcing payment by the Republic of any such money or costs as aforesaid, and no person shall be individually liable under any order for the payment by the Republic or any department or servant of the Republic, of any such money or costs.”
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In construing section 15 (4), the other subsections of that section 15 and indeed all the other sections of the Act, must be taken into account.
“It cannot be over-emphasized that in construing a section of an Act of Parliament, it is always necessary to explain the meaning of the words by an examination of the purport and effect of the other sections in the same Act.”
See Asamoah v. The Republic [1972] 1 G.L.R. 117 at p. 120.
The State Proceedings Act, 1961 (Act 51), has been divided into four parts, Part I—Part IV. It will be noticed that Part III has the following caption, “Judgments and Execution.” Section 15, like section 13, falls under this Part III, and section 15 (1), (2) and (3) deal with “satisfaction of orders.” That is, they lay down the procedure which a judgment creditor of the Republic (or of any department or of the servant of the Republic) should follow in order to obtain the fruits of the judgment or order which has been given or made in his favour; and section 15 (4) deals with execution, attachment “and or processes” which are analogous to execution and attachment, and which are designed to enforce “payment of money and costs.” Reading section 15 (4) in conjunction with the provisions of the other subsections of that section, I am of the opinion that the words “money and costs” in the said section 15 (4) refer to judgment debts or sums of money and costs which have been awarded against the Republic by the court or by any other competent tribunal.
The present motion is not for an order for attachment; neither is it for an order to go into execution nor for payment of any judgment debt and costs. In other words, an application for an order of mandamus cannot, under any circumstances, be described as a process “in the nature of attachment,” or “in the nature of execution for enforcing payment” of judgment debt and costs. The primary purpose of the application herein is to compel the respondent to give instructions to the pay officer, or the treasury officer, whoever that might be, to pay some amount, and it is clear that that amount in question is not a judgment debt nor costs which have been awarded by any court. Section 15 (4) is therefore inapplicable.
Furthermore, even though the ultimate aim of the applicant is to have some money paid, the actual payment, however, is to be done not by the respondent himself, but by another public servant who is quite different from the respondent; and the duty of that pay officer will arise only after the respondent has exercised his powers, if any, and given the necessary authorisation. Thus, it cannot also be argued that the order of mandamus, if granted, will make the respondent herein, “individually liable … for the payment of money and costs.” So whichever way one looks at it, the provisions of section 15 (4) do not apply to the present case, and this court therefore has jurisdiction to entertain the application.
I will now consider the application on its merits. The question to be asked is, can the respondent be compelled by the writ of mandamus to authorise payment of the sum of 091,845.00 to the applicant? It is necessary, at this stage, to remind oneself of the principles relevant to
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the application. In the Judicial Review of Administrative Action by S. A. de Smith (2nd ed.), pp. 575—576, the learned author in discussing the circumstances under which the writ of mandamus can be issued against the servant of the Crown, said:
“Where, however, a duty has been directly imposed by statute for the benefit of the subject upon a Crown servant as persona designata, and the duty is to be wholly discharged by him in his own official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the courts have shown readiness to grant applications for mandamus by persons who have a direct and substantial interest in securing the performance of the duty.”
It may therefore be said that where a statutory duty is imposed in peremptory terms upon an executive official, the courts will examine the facts of the case to see whether the duty has arisen, and if satisfied that it has arisen, it will grant a mandamus ordering its performance. In Commissioners for Special Purposes of Income Tax v. Pemsel [1891] A.C. 531 at p. 539, H.L., Lord Halsbury L.C. observed:
“The statute under which the Commissioners are acting is peremptory in its terms to the Commissioners to make the allowance, and to give the certificates in cases where they are commanded to be given. If, therefore, the case is made out that the facts show a case where the allowance ought to be made, and the certificate, which is merely consequential, should be given, there is a plain duty imposed by the statute on these executive officers, the neglect of which is properly enforceable by mandamus.”
The authorities also make it abundantly clear that the legal obligation or duty which is the foundation of mandamus can arise from the common law, from a statute or even from contract: see R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1 W.L.R.1150 at p. 1153, per Lord Goddard C.J.
Bearing in mind, then, the statements of the legal position, how far do the facts of the present case accord with the statements of the law. That is, has any obligation been imposed on the respondent by any statute, common law or contract for the benefit of the applicant? I have carefully considered the submissions of learned counsel, as well as the affidavit filed, and I cannot find any legal obligation which enjoins the respondent to authorise payment of sums of money that have been endorsed on treasury drafts which have been drawn or issued in favour of members of the public. Learned counsel for the applicant placed some reliance on the case of Mould v. de Vine [1962] 1 G.L.R. 533, where the engineer in charge of the Accra Waterworks (the respondent in that case) was compelled by mandamus to re-connect or cause to be re-connected a water pipe to the applicant’s house.
The learned judge in that case found that the Water Supply Authority, responsible for the said waterworks, had a statutory duty to supply water to members of the public. The duty, which was of a public nature, was
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to be carried out by the servants of the Water Supply Authority, including the respondent; and non-performance of it in fact affected the applicant adversely. What was more, unlike the respondent in the present case, the said engineer in charge of the waterworks was unable to show good cause for refusing to re-connect the water pipe in order to supply water to the applicant. But in the instant case, however, the applicant, has not proved the existence of any statutory or common law duty which has been imposed on the respondent.
The Financial Administration Decree, 1967 (N.L.C.D. 165), which learned counsel for the applicant seemed to have relied upon, does not create any legal duty between the respondent and the applicant. I have gone through that Decree, and I have not come across any paragraph in the said Decree which enjoins the respondent to give authorisation for payment of moneys stated on treasury drafts, such as the one the applicant is supposed to be holding at the moment. In Ex parte Napier (1852) 18 Q.B.D. 692 at p. 695, Lord Campell C.J. in discharging the rule, said:
“The applicant must make out that there is a legal obligation on the East India Company to pay him the sum he demands, and that he has no remedy to recover it by action. The latter point becomes material only when the former has been established, for the existence of a legal right or obligation is the foundation of every writ of mandamus.”
(The emphasis is mine.)
It must be remembered that in R. v. Commissioners of Inland Revenue; In re Nathan (1884) 12 Q.B.D. 461, C.A. the Court of Appeal held that mandamus could not issue, because the statute under which the applicant sought the mandamus created no duty between the commissioners and the applicant, “whose remedy, if the decision of the Commissioners could be reviewed, was by petition of right.” See also R. v. Lords Commissioners of the Treasury (1872) 7 Q.B.D. 387 at p. 395 per Cockburn C.J. I think even if the applicant herein had been able to prove that a legal duty had been imposed on the respondent to authorise payment, I would still have refused the application. For, in the circumstances of this case, mandamus is not the proper remedy. Mandamus like all other prerogative writs, is a discretionary remedy. So that even where an applicant has satisfied all the primary requirements for the “award of the remedy,” the court may, nevertheless, refuse it on the ground that another remedy equally effective is available.
The applicant is asking for an order to force the respondent to authorise or to give directives to the treasury officer (another public servant) to pay a certain amount. Suppose the court makes the order and the respondent obeys the order by giving the necessary authorisation to the treasury officer to pay, but that treasury officer refuses to make payment, what then will happen? It will be difficult, in those circumstances, to enforce the order of mandamus against the treasury officer, no order having been made against him to make any payment. The mandamus will therefore become ineffective and useless so far as that treasury officer is concerned.
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As already stated, the applicant is after money due to the applicant from the Eastern Regional Administration; and if for some reasons payment is being delayed unduly, the best course for the applicant to take is to sue for the amount, say, on a specially endorsed writ, since the face of it, the Eastern Regional Administration may not have any valid defence. I do not therefore see why the applicant should seek an order of mandamus against the respondent and which order, in the long run, may not get the applicant the money the applicant is after, if the situation which I have just posed above arises.
I am therefore of the opinion that mandamus is not the appropriate remedy and, as I have said, I would have refused the application even if all the pre-requisites for granting the order of mandamus had been established by the applicant. Lord Brett M.R., when delivering his judgment in the case of In re Nathan, which I have already referred to, supra, said at p. 475:
“Where there is no specific remedy by which justice can be done, the Court will grant a mandamus, but where there is a specific remedy by which the subject will get justice by a judicial decision of the Courts, then it is within the reason of the rule, that if there is such a remedy a mandamus ought not to issue.”
However, the application can be refused on another ground. That is, even if it is conceded that a statutory duty is cast on the respondent to authorise payment of the said amount, the respondent in my view, had good cause for refusing to perform that duty. In the respondent’s affidavit, filed on 7 March 1974, the respondent stated that the Principal Secretary of the Ministry of Finance, in consultation with the Attorney-General had instructed the respondent to retain the amount of 091,845.00 by way of deduction or set-off against the amount of 0100,000.00 which had already been paid to the applicant under a mistake of fact. The respondent serves under the Ministry of Finance, and the Principal Secretary of that Ministry has power under paragraph 42 (1) of the Financial Administration Decree, 1967 (N.L.C.D. 165), to give the respondent the instructions as stated above. The said paragraph 42 (1) provides that:
“42. ( 1) Where, in the opinion of the Principal Secretary, after consultation with the Attorney-General, any person is indebted to the Government, in any specific sum of money, the Principal Secretary may authorise the retention by way of deduction or set-off of the amount of any such indebtedness out of any sum of money that may be due or payable by the Government to any such person.”
It is clear from the above provision that discretion has been conferred on the said Principal Secretary and, contrary to the submission of learned counsel for the applicant, I do not think the said discretion was improperly or capriciously exercised by the Principal Secretary, having regard to the fact that the applicant has been sued by the Attorney-General for the
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refund of the sum of 01000.00 and the suit is still pending before the court. In any case, I find that the Principal Secretary, Ministry of Finance, is a competent authority to give instructions and directives to the respondent. In the circumstances, it is neither here nor there whether the said Principal Secretary did or did not exercise his said discretion properly in authorising the retention by way of deduction or set-off.
The respondent, having received those instructions or directives, was in duty bound to obey them. If the respondent had refused to obey those instructions it was likely that some disciplinary action could have been taken against him. The respondent therefore had a valid and lawful excuse for not authorising payment. In R. v. Payn (1837) 6 Ad. & El. 392 at p. 401, Coleridge J. put the matter in the following language:
“My only doubt was whether mandamus be the proper remedy. The result of the cases cited appears to be merely this: that, where we find a public officer, who has received an order from his masters or any competent authority, and who upon disobeying that order will be liable to indictment, we do not proceed by mandamus. The Court leaves the case to the ordinary remedies, not because the party is too low, but because he has received an order from competent authority.”
(The emphasis is mine.)
For the above reasons, I hold that the applicant is not entitled to an order of mandamus. Consequently, the application will be and is hereby dismissed. There will be no order as to costs.
DECISION
Application dismissed. S.E.K.
