MINISTER OF LOCAL GOVERNMENT V. NII AKRASHI II [1963] 2 GLR 571

DIVISION: IN THE SUPREME COURT

DATE: 23RD DECEMBER, 1963

BEFORE: SARKODEE-ADOO, ADUMUA-BOSSMAN AND BLAY JJ.S.C.

CASES REFERRED TO

(1) Hogg v. Scott [1947] K.B. 759; [1947] 1 All E.R. 788; 177 L.T. 32; 63 T.L.R 320

(2) In re Fawsitt; Galland v. Burton (1885) 30 Ch.D. 231; 55 L.J.Ch. 568; 53 L.T. 271, C.A.

(3) Julius v. Oxford (Lord Bishop) (1880) 5 App.Cas. 214; 49 L.J.Q.B. 577; 42 L.T. 546, H.L.

(4) Barraclough v. Brown [1897] A.C. 615; 66 L.J.Q.B. 672; 76 L.T. 797, H.L.

NATURE OF PROCEEDINGS

CROSS-APPEALS from a ruling of Ollennu J., delivered on the 29th June, 1961, in the High Court, Accra (reported sub nom. Akrashi II v. Ofori Atta in [1961] G.L.R. 434) on preliminary points of law raised by the defendant in an action by the plaintiffs for a declaration that they were entitled to compensation under the Stool Property (Recovery and Validation) Act, 1959 (No. 31 of 1959) for damage done to their property as a result of acts done by the defendant under an Act subsequently declared invalid. The facts are fully stated in the judgment of Adumua-Bossman J.S.C.

COUNSEL

A.N. E. Amissah, Director of Public Prosecution, for the appellant.

Dr. J. B. Danquah for the respondents, cross-appellants.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

The events which led to the proceedings resulting in the cross-appeals before the court are barely in dispute, and the questions for decision are undoubtedly purely legal ones. The main events are these: The first plaintiff-respondent Nii Kofi Akrashi (who will be referred to as Nii Akrashi throughout this judgment) was for some time prior to the 12th February, 1957, the recognised Manche of James Town, Accra; on that date, however, he was declared destooled. He disputed the destoolment and took certain steps towards challenging it, and for the time being continued occupying the Manche We. On the 15th June, 1957, a notice of his reported destoolment was published by the Minister of Local Government in the Gazette. Thereafter, however, he did not vacate, but still continued occupying the Manche We. On the 30th December, 1957, an Act was passed and made operative as from the 31st December, 1957, namely, the Statute Law (Amendment) (No.2) Act, 1957,1 (hereinafter referred to as Act 30/57) the object of which, as set out therein, was, “to impose additional penalties upon failure [p.575] of [1963] 2 GLR 571 to deliver up Stool or Skin properties upon deposition of a Chief.” By section 3 thereof, it was provided that: “Where under the provisions of any law it is reported to the Governor-General that a person has ceased to be a Chief, a notice of the fact shall be published by the Minister in the Gazette.”

And by section 4, the Minister was empowered, upon the publication of a notice of a reported deposition of a chief, by order made by him and published in the Gazette to:

“(1) . . . authorise any person to take possession and prepare an inventory of the Stool property . . .

(2) By the same or any other Order the Minister may direct any person to seize the Stool property where possession of the Stool property is not obtained within fourteen days of the publication of the Notice . . . Any such Order may where necessary authorise the ejectment of any occupant of land or buildings forming part of the Stool property.”

Acting under the powers so conferred, the Minister on the 21st January, 1958, by the James Town Stool Property Order, 1958,2 authorised Mr. Samuel Bannerman Jacobson to take possession of the James Town Stool property, but no effective action appears to have been taken by Mr. Jacobson. Accordingly, a second order, the James Town Stool Property (No. 2) Order, 19583 was made and published on the 27th May, 1958, appointing and authorising Mr. Daniel Amatey Sampah to take possession of the James Town Stool property. Mr. Sampah appears to have been somewhat more effective and took steps to eject Nii Akrashi and some household attendants from the Manche We on the 31st May, 1958. It is a minor point of controversy in the proceedings whether the plaintiffs other than Nii Akrashi were with him when he was ejected, the defendant by his statement of defence having denied that they were Nii Akrashi’s attendants who were ejected with him; that point of controversy, however, does not affect the determination of the major points or questions of law raised in the proceedings. Continuing, however, with the narrative of events, it appears that by the date of the order L.N. 178/58 and the ejectment of Nii Akrashi and some attendants on the 31st May, 1958, an action by some of the elders of the Stool of James Town to challenge the validity of Act No. 30/57 had been instituted and was pending in the High Court. Judgment in that action was delivered on the 2nd June, 1959, whereby Act 30/57 was declared ultra vires and invalid. The effect, of course, was to render all acts done or attempted to be done under that Act and order made thereunder, unlawful or illegal. Parliament could not be expected to leave matters in that condition, and proceeded to enact another Act to deal with the situation. It was styled the Stool Property (Recovery and Validation) Act, 1959,4 (hereinafter referred to as Act 31/59) and was declared to be: “An Act to make special provision for the recovery of Stool or Skin property not delivered up where [p.576] of [1963] 2 GLR 571 any person ceases to be a Chief and to validate certain acts.” That Act, made operative as from the 15th July, 1959, in the first place, substantially re-enacted the provisions of the Statute Law (Amendment) (No.2) Act, 1957, which had been adjudged by the High Court to be ultra vires. In the second place, it contained important provisions in section 8 thereof, part of which provisions these proceedings were commenced with a view to getting the court to interpret. The provisions are these: [His lordship here read the provisions of subsections (1) and (2) of section 8 of Act No. 31/59 as set out in the headnote and continued:] Still continuing with the narrative of events: those events subsequent to the enactment of Act 31/59 are set out in detail in paragraphs 11 to 18 inclusive of the statement of claim. The summary of them amounts to this: that on the 12th November, 1959, by letter No. 564/B.A.282/59, Nii Akrashi for himself and fifteen other persons being members of his household whom he alleged to have been ejected on the occasion of his ejectment on the 31st May, 1958, submitted a claim to the Minister for compensation in the sum of £G19,750.

By letter No. 4900/68/SF. 1/267 (2) of the 8th January, 1960, Dr. J. B. Danquah as solicitor for Nii Akrashi was informed by the Permanent Secretary that:

“the Minister is unable to accept Nii Akrashi’s claim for compensation, since had Nii Akrashi removed his belongings at the time of his ejectment from the Manche We, the alleged damage to his personal properties would not have occurred.” Thereafter Nii Akrashi applied through his solicitor for the fiat of the Minister of the Interior to bring an action under the Petition of Rights Ordinance,5 but his solicitor was informed by letter that the claim of his client was considered to be of a purely tortious nature in respect of which petition of right did not lie. Ultimately Nii Akrashi’s legal adviser conceived the idea of the instant proceedings by originating summons, and the proceedings were duly commenced. It falls now to turn to the questions raised for determination, and in this connection it seems to me to be necessary to set out the claim as follows: “This summons is issued upon application of Nii Kofi Akrashi II, Ex-James Town Manche of Accra who claims to be entitled to compensation for acts done to him and his dependents before the 10th April, 1959, under the invalid Statute Law (Amendment) (No. 2) Act, 1957 (No. 30 of 1957), for the determination of the following questions:

(1) Whether the plaintiff and his dependents having suffered damage and loss for the tortious acts of the defendant, acting under Statute Law (Amendment) (No. 2) Act, 1957, subsequently declared invalid by the Supreme Court, are not entitled to compensation under the provisions of subsection (2) of section 8 of the Stool Property (Recovery and Validation) Act, 1959, and

(2) Whether the defendant is justified in refusing to entertain claims for compensation on the plea that had the plaintiff removed his

[p.577] of [1963] 2 GLR 571 belongings at the time of his ejectment from the Manche We, under the invalid law, the alleged damage to his personal property would not have occurred, and

(3) For a declaration that the plaintiff and his dependents are entitled to be paid out of the Consolidated Fund under the provisions of the Act the general and special damage of £G20,500 claimed for himself and his dependents in the letter submitted on the 12th November, 1959, to the Minister of Local Government, and in a Petition of Right filed on the 18th January, 1960, amended on the 2nd April, 1960, against the Attorney-General of Ghana and in respect of which the Attorney-General has advised the Minister of the Interior not to give his consent for the preferring of the claim in the High Court on the alleged ground that ‘whether the petition is founded on the breach of a statutory duty or on the seizure of property, the claim is of a purely tortious nature in respect of which a petition of right does not lie.”

The summons was supplemented with a statement of claim which, in substance, set out the circumstances, facts, and events which led to the institution of the proceedings, i.e., the events which have been already briefly summarised (supra). A statement of defence was filed on behalf of the defendant which, for all practical purposes, raised only one important issue of fact by its denial that: “any of the fifteen persons named and described as members of the first plaintiff’s household in paragraph one of the statement of claim was at the material time, a member of the first plaintiff’s household.” It, however, denied allegations as to what was considered by the plaintiffs and their counsel to be the effect of the Stool Property (Recovery and Validation) Act, 1959, as appearing in certain paragraphs of the statement of claim, and went to raise questions of law which appear to lie in limine, in paragraphs 11 and 12 as follows:

“(11) With regard to paragraph 18 of the statement of claim [in which the plaintiffs, in effect, claimed by reference to and in terms of summons] and the questions arising therefrom, the defendant will contend at the trial:

(i) that he has committed no tortious act, all acts done or purported to have been done under the Statute Law (Amendment) (No. 2) Act No. 30/57, or under any order under the said Act of 1957, having been validated by section 8 (1) of the Stool Property (Recovery and Validation) Act, 1959; therefore no question of damage suffered by the first plaintiff or his dependents, whoever the latter may be or whatever their locus standi in this action, suit or proceeding, from the defendant’s tortious act arises for determination by the court;

(ii) that the defendant did not refuse to entertain any claim for compensation under the Stool Property (Recovery and Validation) Act, 1959; and, with regard to the plaintiff’s claim in particular, that this was entertained but not accepted;

(iii) that the first plaintiff’s claim for a declaration that he and his dependents, whoever the latter may be and whatever their locus standi in this action, suit or proceeding, are entitled to be paid £G20,000, whether as general or special damages or both

[p.578] of [1963] 2 GLR 571 or whether on the grounds stated in the statement of claim or on any other ground, out of the Consolidated Fund or any other fund under the control of the Government or the defendant, under the Stool Property (Recovery and Validation) Act, 1959, or any other Act, or at all, is unfounded, erroneous, and misconceived and consequently cannot be entertained by the court;

And the defendant will further contend that the questions posed for the determination of the court and the request for a declaration are an evasion, or an attempt at an evasion, of the provisions of section 8

(1) of the Stool Property (Recovery and Validation) Act, 1959, . . . And the defendant will at the trial invoke the protection of section 8 (1) of the said Act No. 31/59.

(12) The acts complained of by the plaintiffs against the defendant were acts done by the defendant in pursuance or execution or intended execution of a public duty or authority imposed or conferred by the Statute Law (Amendment) (No. 2) Act, 1957; (acts under which Act were validated by section 8

(1) of the Stool Property (Recovery and Validation) Act, 1959). This action or proceeding was not commenced within three months next after the acts complained of and as required by the Public Officers’ Protection Ordinance, Cap. 27.”

The reply was filed on behalf of the plaintiffs by which, in effect, issue was joined on the question of fact and law raised in the statement of defence, and in due course, upon summons for directions, learned counsel for the plaintiffs submitted the following as issues for trial:

“(1) Whether it was not requisite and mandatory for the Minister, the defendant herein to entertain the claims made in the letter No. 564/ B.A.282/59 of the 12th November, 1959, and to offer compensation for the acts shown in that letter to have been done to the plaintiffs before the 10th April, 1959, under the Act of 1957 or in the attempted enforcement of the orders made under the said Act.

(2) Whether the Minister, the defendant herein, should not have offered compensation to the plaintiffs in terms of the Act.

(3) Whether the stand taken by the Minister in his letter No. 4900/68/SF.1/267(2) of the 8th January, 1960, that he was unable to ‘accept’ Nii Akrashi’s claim for compensation on the ground given in that letter was justified by the terms of subsection (2) of section 8 of the Act.

(4) Whether the ejectment of the principal plaintiff from the James Town Manche We, and the manner in which it was done were not forcible and ignominious.

(5) Whether on the 29th August, 1959, Daniel Amatey Sampah did not invite the principal plaintiff or his representative to a room in the Manche We, where some of the principal plaintiff ‘s personal effects had been piled up for collection and whether some of such personal effects, including rare books, were not missing from the lot.

(6) Whether the fifteen other plaintiffs were not members of the principal plaintiff’s household.

(7) Whether on the grounds stated in the statement of claim and as laid down in the Act of 1959, the plaintiffs are not entitled to claim the sum of £G20,500 as compensation by way of general and special damages for acts suffered under the Act of 1957, and to ask for a determination

[p.579] of [1963] 2 GLR 571 of the questions set forth in the claim and for a declaration under the Act of 1959 for the compensation claimed to be paid under the Act of 1959 out of the Consolidated Fund.”

The learned Director of Public Prosecutions (hereinafter referred to as D.P.P.) for the defendant submitted two additional issues, as hereunder:

“(7A) Whether this present action, suit or proceeding, can be maintained against the defendant having regard to section 8 (1) of the Stool Property (Recovery and Validation) Act, 1959 (Act No. 31 of 1959).

(7B) Whether this present action, suit or proceeding against the defendant is not barred by the Public

Officers’ Protection Ordinance, Cap. 27.”

In due course the court ordered that: “The issues to be tried will be the seven set out by the plaintiffs . . . and the two now submitted by the defendant.”

When the trial came on, the learned D.P.P. submitted that:

“Before evidence can be heard there are some points of law which must be argued first; submit that upon the pleadings and papers before the court there are three points of law for the court to determine; they are:

(i) Whether this action can be brought in view of section 8 (1) of Act 31/59;

(ii) Whether upon a proper construction of section 8 (2) there is any mandatory duty imposed upon the

Minister to discharge; and

(iii) Whether this action could be brought in view of the Public Officers’ Protection Ordinance (Cap. 27).” The court agreed that the above were preliminary questions of law and proceeded to hear arguments, first from the learned D.P.P. for the defendant, then from learned counsel for the plaintiffs, and then adjourned for a ruling, and ultimately gave judgment against the defendant in respect of which the cross-appeals have been brought.

The learned judge in his consideration of the questions of law argued before him dealt firstly, with the submission that the proceedings were barred by section 2 of the Public Officers’ Protection Ordinance and held6:

“I do not agree that the claim is statute-barred, because in my opinion the originating summons is not based on any act done by the defendant. In my opinion the cause of action in an originating summons as shown in Order 54A, rules 1 and 2, need not be an act or omission of any person; all the cause of action necessary for the institution of an originating summons is the existence of either a claim of interest ‘under a deed, will, or other written instrument’ or a claim of ‘any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute. ‘An act or omission which might have led to the creation of the instrument or the passing of the statute may be quite irrelevant for the determination of a suit in an originating summons. For that reason a plaintiff in an originating summons need not name any defendant, as provided by Order 54A, rule 3. It is for the court or a judge to direct such persons to be served with the summons as they or he may think fit.” [p.580] of [1963] 2 GLR 571

Pausing here to consider the foregoing expression of views and to comment on the same, it seems, with respect to the learned judge, to be a generalisation which plainly overlooks the more common and usual forms of originating summons, i.e., (1) Form 1A, against a defendant who is directed to enter appearance within eight days, commonly called the inter partes form; and (2) Form 1B where there is no plaintiff or defendant, but there is an applicant who takes out the summons against a respondent who is also directed to enter appearance in eight days; commonly called the non inter partes form. The point of importance is that in neither form is the claim made in the summons completely unrelated to some act or omission on the part of the defendant or the respondent. Although it is Order 54A which deals with originating summonses, the forms are dealt with by an earlier Order 54, r. 4, which provides that: “An originating summons shall be in the Form No. 2, 3 or 5 Appendix K to these Rules,” and it seems as though the learned judge had in mind only Form 5, which is the form that comes nearest to satisfying the description of an originating summons set out in his judgment, i.e., the ex parte originating summons issued against nobody, and in respect of which a judge in his discretion directs whom to be served and made a party. Be this as it may, it appears to me that the part of the learned judge’s expression of opinion more open to criticism than any other, is his statement that, “the cause of action in an originating summons as shown in Order 54A, rules 1 and 2, need not be an act or omission of any person.” Surely, the necessity scarcely ever arises for this form of proceeding by way of originating summons to be resorted to commence an action, (using the latter term in its broad general meaning as given by Order 1, r. 1) unless some person who is to act under a written instrument either does not act at all, or acts contrary to what is considered by an interested party to be the right or proper way or interpretation of the instrument! Surely it is much more true to say that originating summonses are more often commenced as a result of acts done by the persons sued as defendants or respondents, than they are commenced without any act or omission on the part of the persons sued and called upon to enter appearance! Surely, even inactivity to take steps under an instrument or under a statute, constitutes an act or omission giving rise to a cause of action! In any event, to leave the realms of generalisation and come to the particular circumstances of the case before him, surely, the learned judge himself, in his review of the circumstances of the case, expressly admitted, paradoxically enough, that this was an originating summons in which the claim of the plaintiffs depended upon the acts of the defendant. After reviewing the facts, he himself stated as follows7: “Since the plaintiffs claim that section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959, gives them right to make a claim for compensation for any act purported to have been done under the Statute Law (Amendment) (No. 2) Act, 1957, . . . they are in my opinion persons who may take out an originating summons calling for the interpretation of the said section 8.”

[p.581] of [1963] 2 GLR 571

The emphasis is mine for obvious reasons. Still later he observed as follows8:

“But for the passing of that Act any act done by virtue of the Statute Law (Amendment) (No. 2) Act, 1957, or in pursuance of an order made thereunder, would be illegal, the said Act being itself illegal. Consequently any person who suffers injury by reason of any such act would have a cause of action. The validating Act, however, took away the legal right vested in any such person to go to the court with his complaint, and his right to be heard by the court . .

The Act of 1959 was passed because the Statute Law (Amendment) (No. 2) Act, 1957, had been declared by a court of competent jurisdiction to be invalid. Before the said Act was declared null and void, certain acts had been done and some proceedings taken in pursuance of it and in execution of an order made thereunder. All those acts and proceedings were consequently illegal. Those illegal acts and proceedings violated the rights of the citizen as to the freedom of their property and person . . . Therefore by those acts the subjects of the state affected acquired a vested right to go to court and be awarded damages, the quantum of which would be in the discretion of the court. But by the validation Act, Parliament took away those vested rights of the subjects to prosecute their case before a court of law and to have damages awarded them by the court. In substitution for the right so taken away, to go to court and be awarded damages, Parliament provided the subject with a simple and summary method of obtaining redress. The position then is that but for the Act, the courts would have been obliged to entertain an action instituted by any one who feels himself injured or damnified by the acts done under or in pursuance of the Act. Consequently the only object that the Act could have is to substitute the Minister for the courts.”

In the light of the learned judge’s own expression of how he understood the plaintiff’s claim, that is to say, that it was a claim based upon, and made necessarily referrable to, acts done by the defendant under Act 30/57 it is quite impossible to understand the learned judge’s conclusions that9: “Therefore in this case, the court is not concerned with whether in fact the plaintiffs have suffered damage and injury as they allege, . . . All that is necessary for the interpretation of the statute is sufficient facts which show that an act was done or purported to have been done under the Act or in the attempted enforcement of any order under the Act of 1957.”

Indeed, the conclusions appear to be, with respect, glaringly self-contradictory; and in so far as they appear to be the basis of the ultimate conclusion that the claim is not barred by section 2 of the Public Officers’ Protection Ordinance, that ultimate decision obviously cannot be supported. As he himself pointed out, in order to have the locus standi to institute, proceedings at all by taking out the originating summons, the plaintiffs had to allege, and in due course establish, that they were persons against [p.582] of [1963] 2 GLR 571 whom acts have been done under Act 30/57. His words were10:

“The first plaintiff availing himself of the provisions of section 8, subsection (2) of the Act of 1959 petitioned the Minister on behalf of himself and the other plaintiffs for compensation for injuries occasioned to them by the enforcement of the said order, that is their ejectment, and his arrest and arraignment before the court on a criminal charge. In reply to his said petition the first plaintiff received a letter from the Permanent Secretary of the Ministry to say that ‘the Minister was unable to accept the claim.’ In consequence of that reply the plaintiffs instituted these proceedings . . .” Reference might also be made to the terms of the originating summons and the first question the court was asked to determine, as hereinbefore set out. To hold, therefore, that, “in this case the court is not concerned with whether the plaintiffs have suffered damage . . . as they allege,” must be, with respect, palpably wrong. It seems too clear for argument that, in substance, the summons asked for a declaratory judgment that the plaintiffs as persons who had suffered loss and damage from acts committed by the defendant under and by virtue of powers he claimed to exercise under Act 30/57 which was subsequently adjudged invalid, were entitled to be awarded compensation by the Minister. As pointed out by Cassels J. in a case to which the learned D.P.P. for the Minister directed our attention, Hogg v. Scott,11 actions for declaratory judgments are subject to limitation statutes just as any other action. In my view therefore ground 4 of the defendant’s grounds that, “the learned judge was wrong in holding that section 2 of the Public Officers’ Protection Ordinance did not apply to this case,” is well founded and unanswerable. After dealing with the question of the proceedings being affected by the Public Officers’ Protection Ordinance, the learned judge passed on to the question whether the proceedings were not completely precluded or barred by subsection (1) of section 8 of Act 31/59. He stated as follows12: “It was next submitted on behalf of the defendant that the suit is not maintainable because section 8 (1) of the Act of 1959 expressly provides that ‘no action, suit, or proceedings either civil or criminal in respect of such acts shall be brought against the State or any person’, and that an originating summons is a suit as defined in Order 1, rule 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954.

This submission would have been fatal to the case of the plaintiffs had the suit been a claim for damages for injury suffered in consequence of any such act. But the plaintiffs have [not) sued for damages for acts which, but for the Act of 1959 would have been illegal and tortious. Moreover as earlier pointed out, this suit, commenced by an originating summons in pursuance of Order 54A, rule 2, is brought upon a claim by the plaintiffs that upon proper interpretation of section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959, they are persons entitled to certain legal rights, i.e. a right to make a claim to the Minister, coupled with a duty upon the Minister upon the presentation of the claim, to entertain

[p.583] of [1963] 2 GLR 571 the said claim and to make them an offer. Since no act done under the Statute Law (Amendment) (No.2) Act 1957, is relied upon as the cause of the action in this suit, the prohibition in section 8, subsection (1) of the 1959 Act cannot apply to this case, and I hold that the suit is properly before the court.” With regard to this latter statement that, “no act done under [Act 30/57] is relied upon as the cause of action,” the inaccuracy of the statement has already been pointed out by reference to the learned judge’s own statements in the course of his review of the basic facts of the case, when he said, amongst other things, that13:

“Since the plaintiffs claim that section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959, gives them right to make a claim for compensation for any act purported to have been done under the Statute Law (Amendment) (No.2) Act, 1957, . . . they are in my opinion persons who may take out an originating summons calling for the interpretation of the said section 8 . . .”

As to his main or principal conclusion on this part of the case, to the effect that the submission that subsection (1) of section 8 of Act 31/59 bars or precludes the bringing of these proceedings would have been fatal to the case of the plaintiffs had the suit been a claim for damages for injury suffered in consequence of any such act (i.e., one done under Act No.30/57), it appears as if the learned judge read the latter part of subsection (1) of section 8 of Act 31/59 which prohibits the bringing of an action, suit, or proceedings, as though completely divorced and isolated from, or utterly unrelated to, the former or earlier part of the same subsection (1), which conclusively and comprehensively validated all acts done under Act 30/57. It seems to me to be the very essence of the matter to appreciate and comprehend, as learned D.P.P. have very forcefully urged, that the effect of the first part of the subsection whereby every act done under Act No. 30/57 was validated, in that there was no longer in existence any wrong done to anybody for which he had a legal right to obtain redress by means of court proceedings; there was, to borrow the language of the jurists, no injuria capable of causing any damnum in respect of which any cause of action can inure to anybody. It appears to me that once that legal position is appreciated and understood, and the questions arising for decision in this case approached with that understanding, then the solution to the questions become relatively straightforward and the answers almost obvious. In the light of that appreciation of the effect of the first part of subsection (1), that is to say, that there was no longer any civil wrong for which any civil redress could be available, it is difficult to subscribe to the learned judge’s interpretation of the provisions of the subsection that, “no action, suit, or proceeding either civil or criminal in respect to such acts shall be brought against the State or any person,” as limited only to the bringing of an action for damages. It seems too plain for argument, that those words, following closely after the provisions of the subsection whereby every act done under the 1957 Act is validated, can only mean

[p.584] of [1963] 2 GLR 571 that no court proceedings of any sort can or shall be brought. The learned judge in coming to the conclusion which he did appears to have found some salient difference between an ordinary writ of summons and an originating summons, as a means of instituting proceedings in court. It is, of course, true that they are different in form and are used for claiming different judicial reliefs; they are, nonetheless, the same in that they are both actions, i.e., means of commencing legal proceedings in the court, and are covered by the definition of “action” contained in Order 1, rule 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954. This appears to have been pointed out to the learned judge; and the leading English case on the subject, decided on provisions of the Supreme Court Rules of England identical with those of our local rules, cited to him; that is to say, In re Fawsitt; Gailand v. Burton,14 where Cotton L.J. stated that: “ . . . an originating summons is a civil proceeding, and a civil proceeding commenced otherwise than by writ in manner prescribed by the rules is an action.” Moreover, learned counsel for the plaintiffs expressly stated, “I agree that this is an action.” For some reason, however, the learned judge did not feel disposed to treat the proceeding as an “action,” subject to the ordinary incidences of an “action,” but treated it as something unique and abnormal with incidences radically different from those of an ordinary action, and thereby came to hold that because of its form, it was not subject to limitation enactments such as the Public Officers’ Protection Ordinance, and subsection (1) of the Stool Property (Recovery and Validation) Act, 1959. I am of the opinion that, with respect, he came to a wrong decision not only in respect of the question of the application of the Public Officers’ Protection Ordinance, but also in respect of the question of the application of subsection (1) of Act 31/59 barring this action. It follows that, in my opinion, ground 3 also of the grounds filed on behalf of the defendant is well founded and unanswerable. The learned judge after holding that the proceedings were not barred by subsection (1) of section 8 of Act 31/59, passed on to deal with the principal question raised in the action, the interpretation of the provisions of subsection (2) that, “It shall be lawful for the Minister to entertain claims and offer compensation. . . “ that is to say, the nature of the power conferred upon the Minister; whether it was permissible and discretionary, or obligatory and mandatory. After examining relevant authorities cited to him by learned counsel for the parties, to wit, Maxwell on Interpretation of Statutes (10th ed.), pages 244 and 247, and the case of Julius v. Oxford (Lord Bishop),15 and examining particularly the opinions expressed in that case on the one hand by Lord Cairns L.C.16 (which was relied on for the defendant) and on the other hand by Lord Blackburn,17(which was relied on for the plaintiffs) as to the interpretation to be given to the phrase, “It [p.585] of [1963] 2 GLR 571 shall be lawful,” he came to a decision which he expressed in these words18:

“Having given careful consideration to passages in Maxwell relied upon by either party, and the different views expressed by the noble Lords in the Oxford (Bishop) case cited to me, I have come to the conclusion that the authorities show that there are cases in which the words ‘it shall be lawful’ must be held to be enabling or permissive only, and there are cases in which they must be held to confer a power which must be exercised, and therefore are obligatory. Maxwell summed the situation up at page 247, in the words of Lord Penzance quoted from the Oxford (Bishop) case as follows: ‘The effect of the cases in which the exercise of the power conferred was held to be obligatory was that, though the statutes concerned had in terms only conferred a power, the circumstances were such as to create a duty and to show that the exercise of any discretion by the person empowered could not have been intended.’

The Oxford (Bishop) case, the classical case on the subject, shows that the question whether or not such words as ‘it shall be lawful’ are obligatory and the donee must exercise it in any particular case in favour of those who have a right to call for its exercise, is a question to be solved aliunde, from the context, the particular provisions, the general scope and object of the enactment conferring the power. That is the principle which must guide the court in the present case.”

The learned D.P.P. has stated that nobody can, and he certainly does not, quarrel with the above statement of the legal position. His quarrel was with the application of the above-stated principles to the circumstances of this case, whereby the learned judge came to find that19:

“But by the validation Act, Parliament took away those vested rights of the subjects to prosecute their case before a court of law and to have damages awarded them by the court. In substitution for the right so taken away, to go to court and be awarded damages, Parliament provided the subject with a simple and a summary method of obtaining redress.” With due respect, the expression of such a view as above set out, must have stemmed from a failure to appreciate the true effect of the provisions in subsection (1) of section 8 of Act 31/59 that, “Acts purported to have been done under the Statute Law (Amendment) (No. 2) Act, 1957 … or under any Order under the Act of 1957 are hereby validated . . .” The position as from the date of that Act, i.e., 15th July, 1959, is exactly the same as before or prior to the High Court judgment of the 2nd June, 1959, declaring the 1957 Act ultra vires; and as if the judgment had never been given. The position, as indicated earlier in this judgment, was that there was no subsisting wrong or injury according to the law prevailing in Ghana in respect of which anybody acquired, or became entitled to, the right to go to any court for redress. The learned judge, with respect, was wrong in his view that a right to redress still subsisted after the passing of the validating Act, and that the only effect of the Act was to stop enforcing the right in court, but it could still be enforced by the summary method of submission of a claim for compensation to the Minister. If the true position be

[p.586] of [1963] 2 GLR 571 understood, as to the true and real effect of the validating provisions contained in subsection (1) of section 8 of Act 31/59, no difficulty arises as to the proper interpretation of the phrase, “It shall be lawful” contained in subsection (2). Then, with the aid of the tests specified by the learned judge when he said, in effect, that the interpretation of the phrase, “is a question to be solved aliunde, from the context, the particular provisions, the general scope and object of the enactment conferring the power,” it becomes sufficiently plain, I think, that the true nature of the power conferred by the provisions of subsection (2) that, “It shall be lawful for the Minister to entertain claims and offer compensation . . .” was purely permissive and discretionary. It seems hardly necessary to point to the object and purpose of such a permissive and discretionary power, namely, to meet the demands of those exceptional cases where the Minister might feel that, although there is no subsisting legal right or claim to be enforced, yet the peculiar circumstances of a particular case justifies him in offering some reasonable compensation. It is, I think, only when subsection (2) is read in that light that there is consistency between its provisions and the provisions of subsection (1) of section 8 of Act 31/59. I am of the opinion therefore that grounds 1 and 2 of the grounds filed for the defendant and the arguments based thereon are also well founded and unanswerable. The learned D.P.P. also dealt with ground 6 raising the question whether in the circumstances (1) that there was only one day’s preliminary arguments on points of law raised, after which the learned judge, without giving opportunity for the final trial of the action, gave final judgment; and (2) having regard to the terms of his judgment whereby he declined to make the one and only declaration sought on the face of the summons, the award of 75 guineas costs was not justified. In the view that I have taken of the case as a whole, I do not consider it necessary to go into the arguments on this ground and give a decision on the question of the propriety or impropriety of the award of costs. I consider that question as a relatively minor matter in this appeal. Turning now to the cross-appeal of the plaintiff, it was filed in respect of : “(a) That part of the decision in which the court below held that ‘the Minister did exercise the power and jurisdiction conferred upon him by section 8 (2)’ and did entertain the claim made by the plaintiff; and

(b) That part of the decision in which the court below struck out the claim for declaration set out in paragraph 3 of the originating summons, on the alleged ground that ‘The third declaration sought is not within the scope of the court’s jurisdiction under the originating summons’.”

The plaintiffs’ appeal, however, falls to be entertained only if there is, or was, jurisdiction and competency in the trial court to entertain the proceedings commenced by the originating summons at all. Two pertinent arguments advanced on behalf of the alleged jurisdiction and competency of the court were set out in grounds 6 and 7 of the grounds filed on behalf [p.587] of [1963] 2 GLR 571 of plaintiffs:

“(6) By the common law and by the rules of court when a claim is made under Order 54A for a declaration of a legal or equitable right on originating summons, the action or proceeding shall not be ‘open to objection on the ground that a merely declaratory judgment or order is sought thereby,’ but that the court may make binding declarations of right whether any consequential relief is or could be claimed, or not.’ The learned judge of the court below therefore misdirected himself in holding that the claim of the plaintiffs for a declaration that they are entitled to be paid out of the Consolidated Fund, under the provision of the Act, the general and special damage of £G20,500, was not ‘within the scope of the court’s jurisdiction under the originating summons.’ By section 29 of the Courts Act, 1960, the High Court has original jurisdiction ‘in all matters’ and the learned judge of the court below was wrong in holding otherwise.

(7) By the common law, in an originating summons for a declaratory judgment the plaintiff must be entitled to the relief claimed in the fullest meaning of the word so long as such relief would not be something unlawful, or unconstitutional or inequitable for the court to grant. It was within the jurisdiction of the court below to consider what relief was due to the plaintiffs in this action, to determine the amount and to make a declaration for its payment out of the Consolidated Fund in terms of the Act, the defendant’s abuse or failure to observe which resulted in the search before the High Court for relief by a declaratory judgment.”

It seems to me a sufficient answer to the said arguments for the alleged jurisdiction of the court in this particular matter, and especially that part thereof that, “By section 29 of the Courts Act, 1960, the High Court has original jurisdiction ‘in all matters’ and the learned judge was wrong in holding otherwise,” to point out that jurisdiction may be expressly taken away. In a case similar to the instant case, in that a declaratory judgment was sought from the High Court as to the rights of parties under a statute which conferred only a limited jurisdiction for the recovery of certain expenses in a court of summary jurisdiction, Barraclough v. Brown,20 to which learned D.P.P. directed our attention Lord Watson observed as follows:

“It cannot be the duty of any Court to pronounce an order when it plainly appears that, in so doing, the Court would be using a jurisdiction which the Legislature has forbidden it to exercise.

The appellant’s counsel maintained that your Lordships ought to substitute for a debt decree, which is the only remedy claimed under s. 47, a declaration that, under that clause, he has a right to recover from the respondents, who were admittedly the owners of the J. M. Lennard at the time when she sank . . . But apart from the circumstance that such a declaration would not be in accordance with law, the substance of it is one of those matters exclusively committed to the jurisdiction of the summary court. In the absence of authority, I am not prepared to hold that the High Court of Justice has any power to make declarations of right with respect to any matter from which its jurisdiction is excluded by an Act of the Legislature; and were such an authority produced, I should be inclined to overrule it.”

[p.588] of [1963] 2 GLR 571

In the face of the strong terms of subsection (1), not only validating all acts under the 1957 Act, but emphatically prohibiting all proceedings in respect of any such acts under the 1957 Act, which I have already held to amount to a total exclusion or prohibition of jurisdiction, I am of the opinion that the plaintiffs’ cross-appeal cannot be entertained or sustained.

In the result I would allow the defendant’s appeal, set aside that part of the trial judge’s judgment in favour of the plaintiffs against which the defendant has appealed, firstly, as incompetent by virtue of subsection (1) of section 8 of Act 31/59; and, secondly, as in any event barred by section 2 of the Public Officers’ Protection Ordinance; and I would then enter judgment in favour of the defendant wholly dismissing the plaintiffs’ claims against him. As to the plaintiffs’ cross-appeal, I will dismiss the same. I award the defendant the costs of this appeal assessed at £G41 9s. 6d. and the costs in the trial court assessed at 75 guineas.

JUDGMENT OF SARKODEE-ADDO J.S.C.

I agree that the defendant’s appeal be allowed and the plaintiffs’ cross-appeal dismissed. As to costs, I feel that the costs awarded the plaintiffs having been set aside by allowing the defendants’ appeal, each party should bear his own costs in the court below, especially since the conduct of the defendant by the incessant legislation to legalise the obvious wrong done to the plaintiffs is the direct cause of the institution of the action. The defendant however is to have his costs in this court to be assessed. I should add, however, that, as I indicated throughout the hearing of the appeal, the history of the case does not provide a happy reading in a healthy society and I hope the matter would be ultimately settled to the satisfaction of the parties.

JUDGMENT OF BLAY J.S.C.

I also agree with the judgment read by my brother Adumua-Bossman, but would express my own views on some of the questions raised in the appeal.

These are cross-appeals from the decision of the High Court, Accra, presided over by Ollennu J., as he then was, in which he granted in part the claims of the plaintiffs and rejected the other parts contained in an originating summons issued by the plaintiffs against the defendant. The originating summons of the plaintiffs reads as follows: [His lordship here read the summons as set out in the judgment of Adumua-Bossman J.S.C and continued:] This summons was originally issued at the instance of Nii Kofi Akrashi II, as the sole plaintiff, but after the defendant had entered an appearance and the plaintiff had filed a statement of claim and a statement of defence had been filed on behalf of the defendant, the plaintiff applied for the joinder of the other plaintiffs as parties to the suit. The form of the originating summons issued by the plaintiffs is the usual inter partes form which is generally adopted where a party desires to arrive at a judicial decision more expeditiously and economically, instead of taking out a writ of summons in the usual way in which formal pleadings can be delivered. See Odgers on Pleading and Practice (17th ed.),

[p.589] of [1963] 2 GLR 571 pages 6 and 345. Save as stated above, there is no substantial distinction between a writ and an originating summons.

In this case, as already stated, the plaintiff proceeded to file a statement of claim thus depriving himself of one of the advantages inherent in proceedings by an originating summons. It seems to me therefore that what the plaintiffs intended to do and did actually do was to launch a fullscale action against the Minister for acts done by him or on his orders under the Statute Law (Amendment) (No. 2) Act, 1957. The plaintiffs’ statement of claim consisting of eighteen paragraphs mainly recounted the events that led to the filing of the originating summons. [His lordship here read the statement of claim and the reply as summarised in the judgment of Adumua-Bossman J.S.C. and continued:] At the hearing of the trial counsel for the defendant asked that three preliminary points of law be argued, first namely:

“(1) Whether this action can be brought in view of section 8 (1) of the Act.

(2) Whether upon proper construction of section 8 (2) of the Act there is a mandatory duty imposed upon the Minister to discharge, and

(3) Whether this action could be brought in view of the Public Officers’ Protection Ordinance, Cap. 27

(1951 Rev.).”

The learned trial judge having acceded to the request of counsel, the three preliminary points listed above were exhaustively argued and a ruling thereon was reserved for Thursday, the 29th June, 1961. It appears that the learned trial judge treated the hearing of these preliminary points as disposing of the whole case; for he proceeded to award costs against the defendant in his ruling without considering further the other matters raised in the originating summons. In his ruling the learned judge after considering the arguments advanced by counsel for the parties held, inter alia, as follows21:

“It was next submitted on behalf of the defendant that the suit is not maintainable because section 8 (1) of the Act of 1959 expressly provides that ‘no action, suit, or proceeding either civil or criminal in respect of such acts shall be brought against the State or any person’, and that an originating summons is a suit as defined in Order 1, rule 1 of the Supreme (High] Court (Civil Procedure) Rules, 1954.

This submission would have been fatal to the case of the plaintiffs had the suit been a claim for damages for injury suffered in consequence of any such act. But the plaintiffs have [not] sued for damages for acts which, but for the Act of 1959 would have been illegal and tortious. Moreover as earlier pointed out, this suit, commenced by an originating summons in pursuance of Order 54A, rule 2, is brought upon a claim by the plaintiffs that upon proper interpretation of section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959, they are persons entitled to certain legal rights, ie. a right to make a claim to the Minister, coupled with a duty upon the Minister upon the presentation of the claim, to entertain the said claim and to make them an offer. Since no act done under the Statute Law (Amendment) (No. 2) Act, 1957, is relied upon as the cause

[p.590] of [1963] 2 GLR 571 of the action in this suit, the prohibition in section 8, subsection (1) of the 1959 Act cannot apply to this case, and I hold that the suit is properly before the court . . .

As to the second declaration sought it appears to me from exhibit A that the Minister did exercise the power and jurisdiction conferred upon him by section 8 (2) and did entertain the claim made by the plaintiff. The third declaration sought is not within the scope of the court’s jurisdiction under the originating summons; it is accordingly struck out.

There will be a declaration for the plaintiffs that section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959 confers upon the Minister power as well as duty to entertain claims made under the said section and thereupon to offer compensation, and that the exercise of that power is obligatory. The plaintiffs are awarded costs fixed at 75 guineas inclusive.”

It is from this ruling that the cross-appeals have been brought. On behalf of the defendant-appellant the following grounds of appeal were filed: [His lordship here recited the grounds of the appeals and continued:]

The grounds of appeal have been ably and at length argued by counsel for the parties before this court. In my view however it is necessary to consider one point only, namely, the point raised in ground 3 of the defendant-appellant’s grounds in disposing of the appeals; that is whether the plaintiffs’ action is maintainable at all whatever the form it took, in view of the provisions of section 8 (1) of the Stool Property (Recovery and Validation) Act, 1959. That section reads as follows: [His lordship here read the provisions of the section as set out in the headnote and continued:] In my view it is clear from the above quotation that the legislature intended to take away and did effectively take away any rights or any cause of action which might have accrued to the plaintiffs in respect of any acts done by the defendant or on his orders. It is true that section 8 (2) of the Act on which the plaintiffs rely makes it lawful for the Minister to entertain claims and offer compensation for an act purported to have been done under the Act of 1957, but this subsection is permissive only and allows the Minister to do what he would otherwise not have had the power to do. It did not remove the disability imposed by the preceding subsection in respect of actions or proceedings, civil or criminal by persons affected by acts done under the Act of 1957. As I see it, it is the Minister and it is he alone who is empowered to entertain claims and offer compensation and not the court. In my view, therefore, the plaintiffs’ action was misconceived. Before this court and in the court below, much stress was laid on the English case popularly known as the Bishop of Oxford case, 22 and more particular on certain passages in the speeches of the Lords of Appeal when delivering the opinion of the House of Lords. But an examination of that case, in which the authorities are reviewed clearly shows that where a person feels that a power or authority conferred by statute should be exercised in his favour or for his benefit, the proper course open to him is to apply for a writ of mandamus to compel the donee to exercise that [p.591] of [1963] 2 GLR 571 power or authority. It will then be for the court to determine whether that enabling clause in the statute is obligatory or merely permissive. Learned counsel for the plaintiffs has argued before this court, and I think with some justification on the authorities, that where the court makes a declaration in favour of a party to an originating summons, it must proceed to grant a relief. In this case therefore it would follow that if plaintiffs’ action by way of originating summons were permitted, the court having made a declaration in their favour must proceed to award them the relief they claim, namely, the sum of £G20,500 or else determine whatever compensation it may deem appropriate. The plaintiffs would thereby have achieved the same result as if they had brought an action for damages against the Minister for acts done under the Act of 1957 despite the provisions of section 8 (1) of the Act of 1959. I am clearly of the opinion that this cannot be done and that the plaintiffs cannot by the mere subterfuge of seeking a declaration on an originating summons under Order 54, rule 4 circumvent the clear and unambiguous provisions of section 8 (1) of the Act. I therefore hold that the plaintiffs’ action was not maintainable and should have been dismissed.

In the result, as already indicated, I agree that the defendant’s appeal should be allowed, but the plaintiffs’ cross-appeal should be dismissed.

DECISION

Defendant’s appeal allowed.

Plaintiffs’ cross-appeal dismissed.

K.T.