REPUBLIC v. DISTRICT MAGISTRATE, KETA AND ANOTHER; EX PARTE HEDO [1971] 2 GLR 459

DIVISION: IN THE HIGH COURT, HO

DATE: 23 JUNE 1971

BEFORE: FRANCOIS J.

CASES REFERRED TO

(1) U.T.C. v. Sangmuah, Court of Appeal, cyclostyled judgments, January-June 1958.

(2) Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147; [1969] 2 W.L.R. 163; 113 S.J. 55; [1968] 1 All E.R. 208 H.L.

(3) R. v. Governor of Brixton Prison; Ex parte Armah [1968] A.C. 192; [1966] 3 W.L.R. 828; 131 J.P., 43; 110 S.J. 890; [1966] 3 All E.R. 177, H.L.

(4) R. v. Wakefield Justices; Ex parte Butterworth [1970] 1 All E.R. 1181; 114 S.J. 30 D.C.

(5) Russell v. Norfolk (Duke) [1949] 1 All E.R. 109; 65 T.L.R. 225; 93 S.J. 132, C.A.

(6) State v. Kwame kwakye, Supreme Court, 12 November 1965, unreported; digested in (1966) C.C. 34.

(7) Korkor Egbortorwu v. Gershon Egbortorwu, Court of Appeal, 23 March 1971, unreported reversing Republic v. Nutsukpui; Ex parte Egbortorwu, High Court, Ho, 23 July 1968, unreported; digested in (1968) C.C. 152.

[p.461] of [1971] 2 GLR 459

(8) Obeng v. Ampofo, Court of Appeal, cyclostyled judgments, January- June 1958.

(9) Mensah v. Adjei, Court of Appeal, cyclostyled judgments, January-June 1958.

NATURE OF PROCEEDINGS

APPLICATION for an order of certiorari to quash an order made by the District Magistrate, Keta, empowering the respondents to imprison the applicant in default of payment of costs. The facts are sufficiently stated in the judgement.

COUNSEL

E. D. Kom for the applicant.

I. N. Wuaku for the respondent.

Akwei-Addo, Assistant State Attorney, for the magistrate.

JUDGMENT OF FRANCOIS J.

In these proceedings counsel moves on behalf of the applicant Husunugbo Hedo for an order of certiorari to quash the order of the District Magistrate, Keta, dated 25 May 1970 decreeing penalties on the failure to pay a judgment debt due to the respondents.

The facts seem to me uncomplicated. The applicant and another person were brought before the said district magistrate at Keta on a judgment debtor summons. (The proceedings before the said magistrate have been exhibited here as exhibit A). The magistrate without inquiring into the means of the applicant to ascertain whether he was wilfully refusing to pay the debt in terms of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 43, made the following pronouncement:

“Ruling.

The judgment creditors submitted that the order of the court is that the judgment debtors to pay the cost before going forward with the action. The judgment debtors took fresh action without complying with the order of the court.

Judgment creditors maintain that inasmuch as judgment debtors can pay for the services of a lawyer to go to the High Court, they are in position to pay the costs awarded against them. Judgment debtors have N¢ 20.00 in hand to pay Order: Balance N¢182.70 plus costs assessed at N¢10.00 to be paid within seven days in default judgment creditors reserve the right to imprison judgment debtors for 90 days each.” It was strenuously argued that there was no error on the face of the record as the order the magistrate made must have followed some inquiry and must have resulted from a compromise offer by the applicant. Had the matter ended there I might have accepted this argument of the respondent but on 18 May 1971, the applicant was apprehended and thrown into a Keta gaol. This is averred in paragraph (12) of the applicant’s supporting affidavit. Nowhere in the respondent’s affidavit in opposition is the fact that the applicant’s incarceration stemmed from the order of 25 May 1970 controverted.

[p.462] of [1971] 2 GLR 459

I am compelled therefore to hold that that fact is not in dispute. Indeed if the applicant was serving a term of imprisonment independent of the magistrate’s order one would expect an affidavit apprising this court of that fact from learned state attorney who appeared for the magistrate. My attention has also been drawn to the warrant of imprisonment in respect of the applicant and it certainly is in respect of the judgment debt.

It seems to me that for a proper determination of this matter both the ruling and order must be considered together; when this is done it would be seen quite clearly that without taking evidence the magistrate purported to make an order conferring a right on the respondents to imprison the applicant in default of the payment of instalments.

To my mind the failure to take evidence would not have been objectionable had there been no order of incarceration as I have said. The usual default clause tacked on to an order for instalment payments derives its validity from the fact that recourse must be had to the courts before such an order can be implemented. See Ollennu J. (as he then was) in U.T.C. v. Sangmuah, Court of Appeal, cyclostyled judgments January-June 1958 pp. 31-32. An order like the instant one therefore which gives the erroneous impression that a suitor may, without more, execute it, is bad. Some general examination of the law in point is called for.

In Anisminic v. Foreign Compensation Commission [1969] 2 A.C. 147, H.L. Lord Morris said at p. 182: “The control which is exercised by the High Court over inferior tribunals (a categorising but not a derogatory description) is of a supervisory but not of an appellate nature. It enables the High Court to correct errors of law if they are revealed on the face of the record ….. “ In all cases similar to the present one it becomes necessary, therefore, to ascertain what was the question submitted for the determination of a tribunal. What were its terms of reference? What was its remit? What were the questions left to it or sent to it for its decision? What were the limits of its duties and powers? Were there any conditions precedent which had to be satisfied before its functions began? In examining the peculiar facts of this case it is my view that the procedure laid down by statute, namely, that contained in Cap. 4, Sched. II, Order 43, requires that a proper inquiry be held and a confirmed view as to the debtor’s ability to pay arrived at, otherwise the liberty of a suitor may be in jeopardy as indeed happened in this case by a cavalier treatment of the statutory requirements. Thus in R. v. Governor of Brixton Prison; Ex parte Armah [1968] A.C. 192, H.L. Lord Reid said at p. 234:

“If a magistrate or any other tribunal has jurisdiction to enter on the inquiry and to decide a particular issue, and there is no irregularity in the procedure, he does not destroy his jurisdiction by reaching a wrong decision.”

The emphasis is mine.

It must be emphasized that Lord Reid excepted “no irregularity in procedure,” and Lord Morris in the Anisminic case (supra) put it thus at

[p.463] of [1971] 2 GLR 459 p. 183: “Was there some preliminary inquiry upon the correct determination of which its later jurisdiction was dependent?”

It seems to me where a statute lays down the procedure to be followed before an order likely to deprive a person of his liberty is made, any course by-passing the statute is erroneous ex facie. Rules 7 and 8 of Order 43 of Cap. 4, Sched. II clearly indicate an examination and a court hearing.

In R. v. Wakefield Justices; Ex parte Butterworth [1970] 1 All E.R. 1181, D.C.; the English Divisional Court ordered a certiorari to quash a conviction where an accused person had through his solicitor and not personally, pleaded guilty to a charge, as this contravened section 13 (1) of the Magistrate’s Courts Act, 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c.55).

In delivering the judgment of the court, Lord Parker C. J. said at p. 1182:

“The applicant was never asked himself whether he pleaded guilty, something which is required under s. 13

(1) of the Magistrates’ Courts Act 1952.

That being so, it seems to me that there was an error in procedure, and that the only proper course here is to quash the three convictions. It is unnecessary, therefore, to consider the more interesting question whether, if the applicant had been asked how he pleaded, the answer given by the solicitor on his behalf was sufficient . The only doubt that I had in this case was whether it was proper to exercise the discretion in favour of the issue of orders of certiorari. From beginning to end there is on statement no affidavit to the effect that the applicant desired to plead not guilty, …..”

This latter comment on the silence of the applicant on the merits did not affect the result and so must the applicant’s silence as to his means on this application be similarly treated.

I may also say that an error on the face of the record may not involve jurisdiction alone but may extend to a failure to observe the rules of natural justice. It is my view that such a situation exists in the instant application. There has been no statement on oath by the applicant whereby his means could be ascertained. At the best the ruling of the magistrate only suggests that a single offer of N¢20.00 was made by the applicant and paid leaving a “balance.” No adequate opportunity of being heard as to his means was offered the applicant. This is contrary to natural justice. Where a person’s liberty is likely to be restricted or jeopardised any failure to hear him as to his means or exact legal proof of it, as also a failure to examine whether there was a wilful refusal to pay, is clearly a breach of the rules of natural justice. As Tucker L.J. said in Russell v. Norfolk (Duke) [1949] 1 All E.R. 109 at p. 118, C.A.: “The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.” [p.464] of [1971] 2 GLR 459

The empahsis is mine. As the proceedings do not show that an inquiry took place, they cannot be said to be regular upon their face. Of course it is said there was an inquiry and that the ruling suggests this. It is true that in State v. Kwame Kwakye, Supreme Court, 12 November 1965, unreported; digested in (1966) C.C. 34, Ollennu J.S.C. (as he then was) reading the judgement of the Court of Appeal said: “It follows that the submission that where an enactment confers jurisdiction on a court to hear and determine a cause or matter, i.e. to adjudicate upon a cause or matter, it in all cases ipso facto imposes a duty upon the court to take evidence on oath and also implies a right in the parties to the cause or matter that the determination should not be made except upon evidence on oath is not the law of the land. On the contrary, the principle of law is that where an enactment confers jurisdiction on a court, the court, in hearing and determining that cause or matter, must follow the procedure laid down by the enactment conferring the jurisdiction unless it is otherwise expressly provided.”

The emphasis is mine.

The learned judge’s caveat on the inferior court obeying all procedural rules is worth emphasising as indeed the inferior court being a creature of statute has no inherent powers except those conferred on it. In the instant case a procedure is postulated by statute. On the face of the record that procedure has not been complied with by the magistrate; that error which has led to an injustice must be corrected. The Court of Appeal moreover has recently veered sharply to the position that procedural requirements must be strictly observed; see Korkor Egbortorwu v. Gershon Egbortorwu, Court of Appeal, 23 March 1971, unreported; where the Court of Appeal in reversing Republic v. Nutsukpui; Ex parte Egbortorwu, High Court, Ho, 23 July 1968, unreported; digested in (1968) C.C. 152, expressed disapproval in the failure of the High Court itself to hear evidence in determining jurisdiction in strict compliance with the Courts Decree, 1966 (N.L.C.D. 84).

Finally I must say that it is well established that the remedies of certiorari and appeal are not mutually exclusive one of the other, but can be both exercised by an aggrieved party. See Obeng v. Ampofo, Court of Appeal, cyclostyled judgments, January-June 1958 at p. 143.

I finally conclude by saying that the instant case has similarities with the case of Mensah v. Adjei, Court of Appeal, cyclostyled judgments January-June 1958, p 81 where also an erroneous order on a summons to show cause led to the incarceration of the debtor. The court did not mince words on the invalidity of the imprisonment.

I hold therefore that this application succeeds and I order a certiorari to issue to remove to this court the ruling and order of the Keta District Magistrate dated 25 November 1970, for the purpose of being quashed, and I order the same to be quashed.

There will be costs of N¢40.00 against the respondents judgment-creditors. I order no costs against the magistrate as I understand he is no longer in the Judicial Service and in any case by our Constitution no costs can be awarded against him.

DECISION

Order accordingly.

K.T.