REPUBLIC v. SECRETARY TO THE CABINET; EX PARTE GA TRADITIONAL COUNCIL [1971] 1 GLR 71

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 27 NOVEMBER 1970

BEFORE: ABBAN J.

CASES REFERRED TO

(1) R. v. Akiwumi and Bannerman; Ex parte Dako (1957) 3 W.A.L.R.14.

(2) Eku alias Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C.

(3) State v. Asantehene’s Divisional Court B1; Ex parte Kusada [1963] 2 G.L.R. 238, S.C.

(4) R. v. London County Council; Ex parte Swan and Edgar Ltd.(1929) 141 L.T. 590; 45 T.L.R. 512.

(5) Roberts v. Battersea Metropolitan Borough (1914) 110 L.T.566; 78 J.P. 265; 12 L.G.R. 898, C.A.

(6) Barlow v. Ross (1890) 24 Q.B.D. 381; 59 L.J.Q.B. 183; 62 L.T. 552; 38 W.R. 372; 54 J.P. 660, C.A.

(7) R. v. Nicholson [1899] 2 Q.B. 455; 81 L.T. 257; 15 T.L.R.509, C.A.

NATURE OF PROCEEDINGS

PRELIMINARY OBJECTION to an application for certiorari brought to quash a notice published in the Local Government Bulletin and signed by the respondent. The facts are fully stated in the judgment of the court.

COUNSEL

J. Reindorf for the applicants. Appiah-Menka, Deputy Attorney-General (M. A. F. Ribeiro, State Attorney with him) for the respondent.

JUDGMENT OF ABBAN J.

This application was brought by the Ga Traditional Council for an order of certiorari to quash a notice published at page 75 of the Local Government Bulletin, No. 14, signed by the respondent and dated 20 March 1970. The publication informed the general public that changes in the status of certain chiefs in Awutu Traditional Area had been brought to the notice of the government. The title and the first part of the publication read as follows:

“CHANGES AFFECTING THE STATUS OF A CHIEF

The public are hereby informed that the following changes in the status of the Chiefs mentioned in the Schedule hereto have been notified to the Government:-”

[p.73] of [1971] 1 GLR 71

Under the schedule it is stated that Nai Whetey Ndamkwei IV the Awutu Odefey in the Awutu Traditional Area was destooled on 31 December 1969, and in his place one George Kwame Osadu had been enstooled under the stool name of Nai Whetey Agyeman Larbi II.

The applicants’ main objection and their basis for asking for this order of certiorari is that the respondent, who is the Secretary to the Cabinet, made this publication without jurisdiction and without lawful authority. In pursuance of the applicants’ ex parte motion granted on 12 October 1970, the respondent was served with notice of the motion. On the return date, and before the motion was heard on its merits, learned counsel for the respondent raised certain preliminary legal objections. The first objection was that the respondent being a public officer, the application for certiorari against him should have been brought within three months after 20 March 1970, the date on which the alleged cause of action was supposed to have accrued. Counsel argued that Order 59, r. 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides that the application for certiorari should be made within six months or such shorter period as prescribed by any enactment. Learned counsel therefore contended that in the present application the Public Officers Act, 1962 (Act 114), has provided a shorter period of three months so far as the respondent is concerned. Consequently, the applicants ought to have brought their ex parte application for leave on or before 20 June 1970; but they did not do so and they were out of time by about five weeks at the time the said ex parte application was filed. That being the case, counsel for the respondent argued that the applicants should have applied for an enlargement of time; and since no order for enlargement of time was obtained, the applicants’ ex parte motion for leave filed on 27 July 1970 should not have been entertained by the court. Counsel then relied on the following cases, namely, R. v. Akiwumi and Bannerman (1957) 3 W.A.L.R. 14; Eku alias Condua III v. Acquaah [1963] 1 G.L.R. 271, S.C. and State v. Asantehene’s Divisional Court BI; Ex parte Kusada [1963] 2 G.L.R. 238, S.C. The next objection of the respondent’s counsel was that the applicants in any case have no locus standi, that is, they have no capacity to bring the application for certiorari, because, according to counsel, as an adjudicating body the applicants cannot initiate court proceedings. Counsel further submitted that putting aside the question of capacity, the Ga Traditional Council cannot be an aggrieved party so far as the said publication is concerned.

In his reply, counsel for the applicants argued that Act 114 was based principally on the United Kingdom statute known as the Public Authorities Protection Act, 1893 (56 & 57 Vict., c. 61), and that section 1 (a) of that statute is identical to section 2 (1) (a) of Act 114. Counsel therefore submitted that the words “action,” “prosecution” and other “proceeding” appearing in section 1 (b) of the United Kingdom Act have been held by United Kingdom courts as excluding applications for certiorari. Learned counsel further contended that in all the cases which had turned on the interpretation of section 1 (a) of the United Kingdom Act, the courts had

[p.74] of [1971] 1 GLR 71 construed the words “action,” “prosecution” or “proceeding” to exclude certiorari. Counsel referred to R. v. London County Council; Ex parte Swan and Edgar Ltd. (1929) 141 L.T. 590 and the case of Roberts v. Battersea Metropolitan Borough (1914) 110 L.T. 566, C.A. to support his contention. Counsel submitted that the interpretation which the United Kingdom courts have put on the words “action,” “prosecution,” or “proceeding” so far as section 1 (a) is concerned, the same construction must be applied when construing section 2 (1) (a) of Act 114. On this basis, counsel for the applicants further submitted that applications for certiorari were not intended to be covered by section 2 (1) (a) of Act 114 and that the time limit of three months should not affect applications for certiorari brought against public officers. Learned counsel again argued that unless there is clear language the time within which to bring certiorari cannot be held to be abridged, therefore Act 114 can only apply to actions intended to obtain a personal remedy against a public officer and which may result in the award of damages against the officer personally. Counsel also contended that if Act 114 is construed to include certiorari proceedings, it will mean in effect that that Act is limiting the supervisory jurisdiction of the High Court and in those circumstances the Act would be null and void as it would then be contrary to the provisions of article 121 (2) of the Constitution. On this last submission of learned counsel for the applicants, I must point out that if section 2 (1) (a) of Act 114 is held to apply to applications for certiorari, that interpretation will never have the effect of diminishing the courts’ powers so far as prerogative writs are concerned. It is not, at all, being suggested by counsel, that Act 114 itself takes away or limits the supervisory jurisdiction of the courts. So that by merely construing a section of the Act, and thereby giving effect to the provisions of that Act, cannot by itself change the character of Act 114 into that of an enactment which offends against the Constitution. There is therefore no need for me to discuss this aspect of the matter any further.

As regards the second objection raised by counsel for the respondent, counsel for the applicants contended that the respondent’s conduct amounted to usurpation of the applicants’ right and in that respect the applicants are aggrieved parties.

Before I deal with the contentions ably put forward by both counsel, it must be noted that certain facts involved in this application are not in dispute. It is not disputed that the respondent is a public officer within the meaning of section 7 of Act 114. This section defined a “public officer” as “(a) any person in the service of the Government, (b) any person in the service of any local authority.” The respondent is the Secretary to the Cabinet and he undoubtedly comes within the first definition, that is, he is in the service of the government. It is also not disputed that the act of the respondent complained of was done in pursuance or in execution of his public duty or authority. Again it is an admitted fact that the applicants’ cause of action, if any, accrued since 20 March 1970, the date of the said publication. It is therefore clear that on 27 July 1970, when

[p.75] of [1971] 1 GLR 71 the applicants filed their ex parte motion for leave, three months had already elapsed, but they were still within the six months’ period.

It must be observed that the arguments of learned counsel have raised several points of law. But the only legal point of great importance is whether or not Act 114 applies to applications for certiorari so as to limit the time within which to bring such an application to three months in the case of public officers. Order 59, r. 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), lays down the time within which an application for certiorari should be made. The first part of this rule 3 which is relevant to this case reads as follows:

“Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; …” It seems from the wording of this rule that if any enactment prescribes a shorter period than six months, then the application for leave must be made within that shorter period. In other words, the normal six months’ period will not be operative where there is a shorter period provided by another enactment. As I have already stated it must be considered whether section 2 (1) (a) of Act 114, which prescribes a period of three months as the time limit within which any action against public officers should be brought, applies to certiorari proceedings. I think the answer to this question depends very largely on what is meant by the words “action,” “prosecution” and “proceeding” in section 2 (1) (a) of Act 114. That section reads as follows:

“2. (1) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any enactment or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such enactment, duty, or authority, the following provisions shall have effect, that is to say-

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect, or default complained of, or in the case of a continuance of injury or damage, within three months next after the ceasing thereof; . . .”

There is no doubt that this provision is almost identical to the provision in section 1 (a) of the Public

Authorities Protection Act, 1893, and I agree with counsel for the applicants that section 2 (1) (a) of Act 114 must have taken its wording from section 1 (a) of the said United Kingdom statute of 1893. The only difference is that the United Kingdom statute prescribed a time limit of six months while Act 114 prescribed three months.

I have also read carefully the United Kingdom cases cited by counsel for the applicants, and I agree with counsel that in all these cases where the

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Public Authorities Protection Act, 1893, came up for discussion and interpretation, it was held that certiorari was not an action or proceeding within the meaning of section 1 (a) of that statute. See the London County Council case and the other cases referred to supra. However, it must be pointed out that the Public Authorities Protection Act, 1893, never had an interpretation section. So that the United Kingdom courts had to construe those words according to the ordinary rules of interpretation. On the contrary, Act 114 has provided an interpretation section in which the word “action” is defined. Section 7 of Act 114 states, inter alia, that: “In this Act unless the context otherwise requires – ‘action’ includes legal proceedings and process of every description other than criminal, . . .”(My emphasis.) In the face of this interpretation section, I think the construction which the United Kingdom courts have put on the word “action” in the cases cited by counsel for the applicants should not have any influence on our courts. In other words, that construction or interpretation will be of no assistance to this court when it is called upon to interpret section 2 (1) (a) of Act 114. In my opinion, where an Act of Parliament has clearly defined particular words in its interpretation section, it is uncalled for and most unnecessary to look elsewhere for the meaning of those words. The definition of the word “action” as spelt out in section 7 of Act 114 is clear and unambiguous. The expression “legal proceedings and process of every description” appears to be of the utmost importance. I think in using this expression the legislature intended to give the word “action” the widest possible meaning. I am therefore of the view that the word “action” was intended to cover every conceivable court process or proceedings other than proceedings which are criminal in character. That is, looking at this expression carefully and considering the object of Act 114 as a whole, it is apparent that the legislature never intended the word “action” to bear a restricted meaning and it must therefore be given its full extent and capacity. In the case of Barlow v. Ross (1890) 24 Q.B.D. 381, C.A., Lord Esher M.R. in the course of delivering his judgment said at p. 389:

“But it is a familiar rule of construction that, although the Courts are prima facie bound to read the words of an Act according to their ordinary meaning in the language, if there are other circumstances which shew that the words must have been used by the legislature in a sense larger than their ordinary meaning, the Court is bound to read them in that sense.”

On this basis, I am of the view that an application for an order of certiorari is a legal process or proceeding of some description. After all, it cannot be denied that certiorari is a kind of legal process which is taken with a view to question some act done without jurisdiction or in excess of jurisdiction. I therefore hold that an application for certiorari falls within the word “action” as defined in section 7 of Act 114; and that being the case, the three months’ limitation provided in section 2 (1) (a) of Act 114 should apply also to certiorari proceedings.

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It follows that a shorter period within which an application for leave should be made, where public officers are concerned, has been provided for by an enactment, namely, Act 114. Consequently the applicants should have filed their ex parte motion for leave within three months after 20 March 1970, the date on which their alleged cause of action was supposed to have accrued. But this was not done and they were out of time for some weeks. In those circumstances, they should have applied first on notice for an enlargement of time under Order 64, r. 6; and their ex parte motion could only have been filed, after the extension of the time had been granted. Inasmuch as the applicants failed to obtain an order for an enlargement of time, their ex parte motion for leave ought not to have been entertained. In view of this conclusion it is not necessary for me to make a ruling on the question of whether or not traditional councils as adjudicating bodies can initiate legal proceedings of this nature. However, assuming that Act 114 does not apply to applications for certiorari and assuming that traditional councils can initiate legal proceedings of this nature, can it be said that the present applicants are aggrieved parties so far as the publication in the bulletin is concerned? I think the mere publication of the said notice, without more, did not in any way usurp the functions of the Ga Traditional Council. All that the respondent did was to bring to the notice of the general public certain information which the government had received in respect of chieftaincy affairs in the Awutu Traditional Area. In my opinion such an act cannot in any way be said to be tantamount to taking a decision of any kind affecting any of the functions or rights of the applicants. I do not therefore see any peculiar grievance of the applicants in this matter. See R. v. Nicholson [1899] 2 Q.B. 455, C.A. In this case, Vaughan William L.J. said at page 471 that: “There has been a good deal of argument as to whether the prosecutors are persons who are aggrieved by what has been done. This is not a case in which any statute has said that the persons who apply for the writ should be persons who are aggrieved, but it is a case in which by the practice of the Courts it has always been insisted upon that the persons applying should be persons who are aggrieved.”

Looking at the publication as it stands, the only person who can complain as an aggrieved party is Nai Whetey Ndamkwei IV, the chief mentioned in the bulletin as having been destooled. For the above reasons I have come to the conclusion that the present application is not properly before this court. It is wholly misconceived and the same is accordingly dismissed. The respondent will have his costs assessed at N¢55.00.

DECISION

Preliminary objection upheld. Application dismissed.

T. G. K.