SEYIRE v. ANEMANA [1971] 2 GLR 32

DIVISION: IN THE COURT OF APPEAL

DATE: 25 JANUARY 1971

BEFORE: AZU CRABBE, AMISSAH AND ANIN JJ.A.

CASES REFERRED TO

(1) Griffin v. Weatherby (1868) L.R. 3 Q.B. 753; 9 B. & S. 726; 37 L.J.Q.B. 280; 18 L.T. 881; 17 W.R. 8.

(2) Walker v. Rostron (1842) 9 M. & W. 411; 11 L.J.Ex. 173.

(3) Shamia v. Joory [1958] 1 Q.B. 448; [1958] 2 W.L.R. 84; 102 S.J. 70; [1958] 1 All E.R. 111.

(4) Foley v. Hill (1848) 2 H.L.Cas. 28; 9 E.R. 1002, H.L.

[p.34] of [1971] 2 GLR 32

(5) Joachimson v. Swiss Bank Corp. [1921] 3 K.B. 110; 90 L.J.K.B. 973; 125 L.T. 338; 37 T.L.R. 534; 65 S.J. 434; 26 Com.Cas. 196, C.A.

(6) Great Western Railway Co. v. London and County Banking Co., Ltd. [1901] A.C. 414; 70 L.J.K.B. 915; 85 L.T. 152; 50 W.R. 50; 17 T.L.R. 700; 45 S.J. 690; 6 Com.Cas. 275, H.L.

(7) Ladbroke & Co. v. Todd (1914) 111 L.T. 43; 30 T.L.R. 433; 19 Com.Cas. 256.

(8) Commissioners of Taxation v. English, Scottish, and Australian Bank, Ltd. [1920] A.C. 683, P.C.

(9) Hodgson v. Armstrong [1967] 2 Q.B. 299; [1967] 2 W.L.R. 311; 110 S.J. 907; [1967] 1 All E.R. 307, C.A.

(10) Petty v. Daniel (1886) 34 Ch.D. 172; 56 L.J.Ch. 192; 55 L.T. 745; 35 W.R. 151.

(11) Pontin v. Wood [1962] 1 Q.B. 594; [1962] 2 W.L.R. 258; [1962] 1 All E.R. 294, C.A.

(12) In re Pritchard [1963] 1 Ch. 502; [1963] 2 W.L.R. 685; [1963] 1 All E.R. 873, C.A.

(13) Lloyd v. Great Western Diaries Co. [1907] 2 K.B. 727; 76 L.J.K.B. 924; 97 L.T. 384; 23 T.L.R. 570; 51 S.J. 530, C.A.

(14) Smythe v. Wiles [1921] 2 K.B. 66; 90 L.J.K.B. 1278; 124 L.T. 688; 37 T.L.R. 256; 65 S.J. 258, C.A.

(15) MacFoy v. United Africa Co., Ltd. [1962] A.C. 152; [1961] 3 W.L.R. 1405; [1961] 3 All E.R. 1169, P.C.

(16) Cooper v. Cooper [1964] 1 W.L.R. 1323; 107 S.J. 524; [1964] 3 All E.R. 167n.

(17) Harkness v. Bell’s Asbestos & Engineering, Ltd. [1967] 2 Q.B. 729; [1967] 2 W.L.R. 29; [1966] 3 All E.R. 843. C.A.

(18) Smalley v. Robey & Co., Ltd. [1962] 1 Q.B. 577; [1962] 2 W.L.R. 245; 106 S.J. 34; [1962] 1 All E.R. 138, C.A.

NATURE OF PROCEEDINGS

APPEAL from a ruling of Koranteng-Addow J. in the High Court, Tamale, on 12 January 1970, unreported, in which he overruled a preliminary objection raised by the appellant that the respondent’s petition was invalid. The facts are fully set out in the judgment of Azu Crabbe J.A.

COUNSEL

E. O. Appiah for the appellant.

S. A. Okudzeto for the respondent.

JUDGMENT OF AZU CRABBE J.A.

This appeal arises from the ruling of Koranteng-Addow J. at the High Court, Tamale, upon a preliminary issue in an election petition filed by the petitioner-respondent (hereinafter referred to as the petitioner) against the respondent-appellant (hereinafter referred to as the respondent).

The facts of this case are very simple and undisputed. The petitioner, who was the losing candidate in the last general election held at the Navrongo constituency on 29 August 1969, filed an election petition in the High Court, Tamale, against the respondent on 10 October 1969. This petition was filed without any deposit for the security for costs. Later the same day, however, the solicitor for the petitioner, Mr. Ibrahim Mahama,

[p.35] of [1971] 2 GLR 32 called the registrar of the High Court, Tamale (Mr. J. J. Clement), by telephone from Accra and told him that he intended to send by telegraphic transfer money as security for costs in the election petition which he had caused to be filed on the petitioner’s behalf. The solicitor further told him that the bank would in due course advise him about this payment. The registrar did not appear to have raised any objections to the procedure which the petitioner’s solicitor proposed to follow. Some time, still later on the same day, i.e. 10 October 1969, the petitioner’s solicitor again called the registrar from Accra and informed him that he had in fact transferred the money. The accountant of the Ghana Commercial Bank, Tamale, gave evidence and said that on 10 October 1969, an amount of N¢400.00 was transferred from Accra to the bank in favour of the registrar of the High Court, Tamale. A cheque dated 11 October 1969 for the amount of N¢400.00 was written in favour of the registrar, but this cheque was actually paid to the registrar across the counter of the bank on 15 October 1969, and was credited to the account of the registrar, High Court, Tamale, at the bank on the same date. Accordingly, the registrar, on the same day, issued two separate receipts: one for the sum of N¢200.00 in respect of this petition and another for the same amount in respect of a different petition.

The Gazette notice, containing the results of the general election to the National Assembly held on 29 August 1969, was published on 19 September 1969, and in paragraph (1) of the answer to the petition the respondent alleged as follows:

“The respondent says the purported petition of the petitioner is not valid by virtue of the joint effect of paragraphs 29 and 30 of the Representation of the People Decree, 1968 (N.L.C.D. 255), in that petitioner did not give security within 21 days after the publication in the Gazette of the results of the elections to which the petition purports to relate.”

Paragraph 29 of the Representation of the People Decree, 1968 (N.L.C.D. 255), reads:

“29. The presentation of an election petition shall not be valid unless within the time limited by the provisions of paragraph 30 of this Decree for the presentation of the petition the person seeking to present the same gives security for costs amounting to two hundred new cedis.”

And the relevant provisions of paragraph 30 also read:

“30. (1) An election petition shall be presented within twenty-one days after the date of the publication in the Gazette of the results of the election to which it relates . . .

(2) The time limit provided by this paragraph for the presentation of an election petition shall not be extended.”

With regard to the practice and procedure to be followed in an election petition, it is provided in paragraph 38 of the Decree as follows:

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“38. (1) The Rules Committee established pursuant to the provisions of sub-paragraph (1) of paragraph 86 of the Courts Decree, 1966 may, by statutory instrument, make Rules of Court regulating the practice and procedure to be followed in the case of election petitions and petitions presented under the provisions of paragraph 37 of this Decree.

(2) Until Rules are made under the provisions of the immediately preceding sub-paragraph and subject to the other provisions of this Decree,

(a) the trial of an election petition of a petition presented under the provisions of paragraph 37 of this Decree shall be conducted in accordance with the law regulating the trial of civil causes or matters by the High Court in the exercise of its original jurisdiction; and

(b) the High Court shall have, for the purposes of the trial, the same powers, jurisdiction and authority as it has for the trial of civil causes or matters.”

By the time the petitioner filed his petition no rules of court had been made by the rules committee to regulate the practice and procedure to be followed in election petitions.

At the hearing of the petition on 12 January 1970, Mr. Appiah, appearing as counsel for the respondent, submitted that the determination of the matters contained in paragraph (1) of the answer to the petition could dispose of the whole matter in limine, as they formed the foundation of the whole petition. Mr. Appiah told the court that he would therefore leave the prayers in respect of paragraphs (2) and (3) of the answer, and he asked the court to deal with the preliminary point as to whether the petition was valid, having regard to the fact that two important prerequisites laid down by paragraph 29 and 30 of N.L.C.D. 255 had not been complied with by the petitioner. Counsel for the petitioner, Mr. Mahama, did not agree to the proposal made by Mr. Appiah, but said that he would agree only if the respondent agreed to stand or fall by the result of the trial of the preliminary point. The learned judge of the court below thereupon recorded the following notes:

“By Court: If the result of a trial of the issue raised in paragraph (1) of the answer will enable the court to dispose of this matter in limine I do not see any reason why the parties should be encouraged to undergo heavy expenses both in time and money. I shall therefore try the preliminary point . . .” Each side led short evidence, and the following important undisputed facts were established:

(1) That the petition was filed on 10 October 1969, which was the last date for the filing of election petitions.

(2) That on the presentation of the petition no money for security for costs was deposited. [p.37] of [1971] 2 GLR 32

(3) That on 10 October, the solicitor for the petitioner paid to the Ghana Commercial Bank in Accra the sum of N¢400.00 for transfer to the Ghana Commercial Bank, Tamale, for payment to the registrar of the High Court, Tamale, as security for costs.

(4) That the Ghana Commercial Bank, Tamale, received the amount the same day, i.e. 10 October 1969.

(5) That the cheque for payment to the registrar was dated 11 October 1969.

(6) That the cheque was given to an officer of the court on 15 October 1969, and it was subsequently paid into the registrar’s account at the Ghana Commercial Bank, Tamale.

(7) That on 15 October 1969, the registrar issued a receipt for N¢200.00 in respect of the petition filed by the petitioner on 10 October 1969.

In his ruling, Koranteng-Addow J. said, quite rightly in my view, that his task was to ascertain whether or not the transfer of the money (i.e. the N¢200.00) through the bank on 10 October 1969 was sufficient compliance with the provisions of paragraph 29 of N.L.C.D. 255. He said:

“There are however authorities which, though not on all fours with this matter, at least, point the way and speak with one voice that once a third party in whose hands there are funds agrees to transfer the funds to a transferee he becomes legally bound to effect the transfer and would be liable in an action for money had and received to the use of the transferee. In other words a legal right to receive the fund vests in the transferee immediately the third party agrees to make the transfer.”

And basing himself on the dictum of Blackburn J. in Griffin v. Weatherby (1868) L.R. 3 Q.B. 753, he held that the provisions of paragraph 29 were duly satisfied.

Against this ruling the respondent has appealed to this court on a number of grounds stated as follows: “(i) The learned judge was wrong in holding as he did that a right to be paid a sum of money is the same as the money actually having been paid.

(ii) The learned judge was wrong in holding as he did that money intended for the court must be taken to have been paid to the court immediately the money is given to a bank.

(iii) The learned judge misapplied the principles of law in that there was no evidence of the bank having communicated to the court of holding money for the court.

(iv) The learned judge completely overlooked the fact that the bank was an agent of the petitioner and any act or default of the bank was that of the petitioner.

(v) The learned judge was wrong in holding that the payment of money by a bank was a mere formality. [p.38] of [1971] 2 GLR 32

(vi) The ruling was against the weight of evidence especially having regard to the time of the preparation, the making ready and the payment of the cheque.

(vii) The learned judge overlooked the fact that payment implies payment in cash.

(viii) The learned-judge was wrong in holding that a payment of money to the Ghana Commercial Bank was a payment to the High Court.”

Counsel for the respondent cited to us the cases of Griffin v. Weatherby (supra); Walker v. Rostron (1842) 11 L.J.Ex. 173 and Shamia v. Joory [1958] 2 W.L.R. 84, upon which the learned judge had relied, and he argued that the facts in these cases can be distinguished from those of the present case, and that the principle established in these cases do not apply here. I think it is sufficient to say, without embarking upon a detailed examination of these cases, that counsel for the respondent appears to be right in his argument. The true principle established by these cases has been compendiously stated in Bowstead on Agency (13th ed.), at p. 412, as follows:

“Where an agent is directed or authorised by his principal to pay to a third person money out of a fund existing or accruing in his hands to the use of the principal, and he expressly or impliedly promises such third party to pay him, or to receive or hold such money on his behalf or for his use, he is personally liable to pay such third party, or to receive or hold such money on his behalf or of his use, as the case may be, even if he has had fresh instructions from the principal not to pay such third party.”

This is a case in which money was paid by one party to the bank, which promised to transfer the money to a third party, the registrar of the High Court, Tamale, but there was no promise by the bank to the registrar that they were holding the money on his behalf. It does not seem to me, with the greatest respect to the learned trial judge, that the principle in Griffin v. Weatherby (surpra) and Shamia v. Joory (supra), can be aptly applied to the facts of the present case. The court, however, drew the attention of counsel for the respondent to the provisions of section 5 of the Contracts Act, 1960 (Act 25), the relevant part of which reads:

“5. (1) Any provision in a contract made after the commencement of this Act which purports to confer a benefit on a person who is not a party to the contract, whether as a designated person or as a member of a class of persons, may, subject to the provisions of this Part, be enforced or relied upon by that person as though he were a party to the contract.”

Counsel’s submissions on this point are first that section 5 does not apply because the section deals with contracts which confer benefits on third parties. In his view, the Republic did not derive any benefit by the payment to the bank. He further submitted that upon the assumption that the section applies, it only gives a right of a chose in action. A right to be paid [p.39] of [1971] 2 GLR 32 by a debtor is not the same as the debtor having made the payment. Therefore, counsel contended, a right to receive security for costs is not the same as having given security within the meaning of paragraph 29 of N.L.C.D. 255. Mr. Okudzeto, counsel for the petitioner, did not address us on section 5 of Act 25, and I take it that he conceded Mr. Appiah’s argument.

Next, Mr. Appiah argued that the relationship between a banker and customer is that of a debtor and creditor, and he cited Foley v. Hill (1848) 2 H.L. Cas. 28, H.L. and Joachimson v. Swiss Bank Corp. [1921] 3 K.B. 110, C.A. He submitted that in the present case the bank was the agent of the petitioner only, and not of the court, and therefore payment of money into the bank does not mean payment to the court. As a general proposition, I agree that basically the relationship between a banker and a customer is the same as the ordinary relation of debtor and creditor, and I need only refer to the words of Lord Cottenham in Foley v. Hill (supra) at pp. 36-37, H.L.:

“The money paid into the banker’s, is money known by the principal to be placed there for the purpose of being under the control of the banker; it is then the banker’s money; he is known to deal with it as his own; he makes what profit of it he can, which profit he retains to himself . . . he has contracted, having received that money, to repay to the principal, when demanded, a sum equivalent to that paid into his hands.” The courts have, however, recognised certain important differences between the ordinary relations of debtor and creditor and those between banker and customer, but I do not think it is necessary to go into these here.

But Mr. Okudzeto has referred us to section 82 of the Bills of Exchange Act, 1961 (Act 55) and submitted that that section puts the bank in a special position different from an individual. He said that the contract signed between the solicitor of the petitioner and the Ghana Commercial Bank in Accra was for the benefit of the registrar of the High Court, Tamale. The registrar was a designated person in the contract between the bank and the petitioner’s solicitor, and under section 19 (3) of Act 55 an unconditional delivery of the amount paid was made to the registrar of the High Court, Tamale. Section 19 (3) of the Act reads: “(3) Where a bill is no longer in the possession of a party who has signed it as drawer, acceptor, or endorser, a valid and unconditional delivery by him is presumed until the contrary is proved.” And section 1 of the Act defines a bill of exchange as “an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to or to the order of a specified person, or to bearer.”

Section 82 of Act 55 does not define the word “customer.” The interpretation of “customer” has been considered by the courts in England in cases arising under section 82 of the English Bills of Exchange Act, 1882

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(45 & 46 Vict., c. 61) which is in pari materia with our Bills of Exchange Act, 1961 (Act 55). In Great Western Railway Co. v. London and County Banking Co., Ltd. [1901] A.C. 414, H.L., it was held that to make a person a customer of a bank within section 82 of the English Act there must be in existence some sort of account, either a current or a deposit account, or there must be some similar relationship. In Ladbroke & Co. v. Todd (1914) 30 T.L.R. 433, Bailhache J. expressed the view that the mere opening of an account without the actual drawing of money was sufficient to constitute the relationship, and his opinion was followed in Commissioners of Taxation v. English, Scottish, and Australian Bank, Ltd. [1920] A.C. 683, P.C. where it was said that “the word ‘customer’ ‘signifies a relationship in which duration is not of the essence . . . The contract is not between an habitue and a newcomer, but between a person for whom the bank performs a casual service . . . and a person who has an account of his own at the bank.” I think the cases are unanimous that the word “customer” must be given a restricted meaning. It means one who has an account with a banker; the word does not have the wider general meaning of a person with whom the bank has casual commercial transactions. In this case there is no evidence of the real relationship between the petitioner’s solicitor and the Ghana Commercial Bank, Accra, or of the form of transaction between them. Neither is there evidence of the precise instructions which he gave to the bank. We cannot, therefore, presume that he was a “customer” of the bank within the meaning of section 82 of Act 55.

In my view, the arguments based on the relationship between banker and customer are not of much assistance in the determination of the real question raised by this case. The solution ought to be sought in the rules regulating practice and procedure in the High Court, namely, the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). As we have already noticed, the complaint of the respondent, as alleged in paragraph (1) of his answer, is that the petition is null and void, because the petitioner did not give security for costs within 21 days after the publication of the results of the general election to which the petition purported to relate. It is undisputed that on 10 October 1969, the last day for filing of election petitions, the petitioner filed a petition at the registry of the High Court Tamale, but failed at the same time to pay at the said registry the sum of N¢200.00 to cover security for costs as required by paragraph 29 of the Decree. I agree with Mr. Appiah that paragraph 29 envisages payment of the sum of N¢200.00 into court. The relevant provisions of the Supreme [High] Court (Civil Procedure) Rules, 1954, which deal with security for costs are contained in rule 4 of Order 65. Rule 4 reads: “In any cause or matter in which security for costs is required, the security shall be of such amount, and be given at such times, and in such manner and form, as the Court or a Judge shall direct.” In this case the amount and the time of payment had been fixed by law, but the manner and form of payment were not similarly prescribed. [p.41] of [1971] 2 GLR 32

The simple issue in this case is whether the petitioner had given security for costs. Mr. Appiah contends that payment of money into the bank was not payment into court, and therefore the petition was invalid, because at the close of business at the registry of the High Court, Tamale, on 10 October 1969, the petitioner had not paid any money there as security for costs. Mr. Okudzeto, on the other hand, states that if a matter is not before the court, a person seeking direction will either go to the registrar or make an application to the judge. He submitted that in this case the registrar of the High Court, Tamale, was a competent person from whom guidance could be sought as to the manner or form in which the security for costs should be given. He contended that since the registrar was the proper person to receive the security, and he agreed for the Ghana Commercial Bank to be used as the medium for the transfer of the money, his acceptance of the promise of payment was as good as the acceptance of the money. But in Mr. Appiah’s view what the registrar said on the filing of the petition were not directions, and even if they were, then they were not competent.

What then are the exact functions of the registrar of the High Court? There is at the present time no comprehensive statement of these functions anywhere. But section 11 of the Courts Ordinance, Cap. 4 (1951 Rev.), as amended by section 3 of the Courts (Amendment) Act, 1958 (No. 16 of 1958), stated that registrars could perform such duties in the execution of the powers and authorities of the courts to which they were attached as would from time to time be assigned to them by the rules of court, or subject thereto, by any special order of the High Court, as the case might be. Section 12 of the Courts Ordinance, as amended by section 4 of the Courts (Amendment) Act, 1958, also stated as follows (in so far as is relevant):

“(1) Subject to the provisions of section 11 of this Ordinance, the Registrars shall issue all summonses, warrants, precepts, and writs of execution, and shall register all orders and judgments and keep a record of all proceedings of the Courts to which they are attached.

(2) Every Registrar shall have the custody and keep an account of all fees and fines payable or paid into the Court to which he is attached and of all moneys paid into or out of Court; and shall enter in a book belonging to the Supreme Court kept by the Registrar for the purpose an account of all moneys paid into or out of Court, and of all such fees, fines and moneys as and when received . . .”

Though the Courts Ordinance Cap. 4, as subsequently amended, was repealed by section 156 of the Courts Act, 1960 (C.A. 9), the repeal has not in any way affected the functions of the registrars of the superior courts, nor has it diminished their importance and status in our court system. There can be no question that the registrar of the High Court, Tamale, was the officer entitled by law to receive moneys paid into court as security for costs. And rule 12 of Order 22 of the Supreme [High] Court (Civil Procedure) Rules, 1954, provides:

[p.42] of [1971] 2 GLR 32

“When any money is paid into or deposited in Court, the Registrar of the Court shall thereupon pay the money into the Court account opened with the nearest Bank, and thereafter shall, upon receipt of the receipted paying-in slip from the Bank, forward the same to the office or branch-office of the

Accountant-General’s Department. The Accountant-General shall thereafter comply with any direction in writing he may receive from the Court or the Registrar respecting such money and shall, on compliance with any such direction, be free and exonerated from all liability on account of or relating to the same.” The evidence reveals that the registrar of the High Court, Tamale, had, in compliance with rule 12 of Order 22, opened an account with the Ghana Commercial Bank, Tamale. On 10 October 1969, as a result of a procedure agreed to by the registrar, the bank received the sum of N¢400.00 in favour of the registrar, and this amount included the sum of N¢200.00 as security for costs which the petitioner was required to pay by virtue of paragraph 29 of N.L.C.D. 255. The bank could have credited the registrar’s account with the whole amount on the same day, or it could have paid the cheque for the whole amount on the same day to the registrar, and, if that was not possible, the bank could have contacted the registrar for his advice. The registrar did not, however, go to the bank on that day to collect the money, though I appreciate that a clerk of the court whom he had sent to collect it on 12 and 13 October was told that the cheque for this amount was not ready. But the registrar was clearly aware of his responsibilities, and I quote a part of the proceedings when he was being examined by the court:

“Q. Is it part of your normal duties to go and collect fees in connection with matters in court? A. Being the registrar of the court I am responsible for all the duties in connection with such matters. It is part of my general duties to go to the bank to collect such payments as the one made in this matter if I feel the officer in charge is not making headway.”

The petitioner contends that he had, before the expiry of the date of giving security for costs, paid the amount required to the Ghana Commercial Bank, Tamale, on the directions of the registrar, and that he had done all that was possible to comply with the law.

I think Mr. Okudzeto’s contention ought to be upheld because in my opinion, by directing that the amount representing the security for costs be paid to the bank the registrar made the bank his agents, and it would be unjust that the petitioner should be prejudiced by the delay of the bank in paying the money to the registrar on the same day, or crediting the registrar’s account, when the amount was received at the Tamale branch of Ghana Commercial Bank. The case of Hodgson v. Armstrong [1967] 1 All E.R. 307, C.A., to which I wish to refer, is not on all fours with the present case, but I have been assisted by it in coming to the conclusion that the bank was an agent of the registrar. The precise point in that case was whether an application to the court for a new lease purported [p.43] of [1971] 2 GLR 32 to be made under Part 2 of the Landlord and Tenant Act, 1954 (2 & 3 Eliz. 2, c. 56), was made within the statutory time. The facts of the case are briefly that on 19 December 1964, a landlord gave his tenant notice under the Act terminating her tenancy. The tenant duly gave notice of unwillingness to give up possession and so entitled herself to apply to the county court for a new tenancy “not less than two and not more than four months after” 19 December, the period fixed by section 29 (3) of the Act of 1954. The four months therefore expired on 19 April 1965, which was the Easter Monday Bank Holiday, on which the court office was closed. The office did not open on Good Friday 16 April, nor on any Saturday, and after closing at noon on Thursday, 15 April had re-opened on Tuesday, 20 April. In the afternoon of Thursday, 15 April, the tenant’s solicitor posted her application for a new tenancy to the court by ordinary post. It would normally have been delivered on Saturday, 17 April, but the court had instructed the post office not to deliver mail to the court on Saturdays and to keep it until the next week-day delivery. The tenant’s application was therefore kept by the post office, and delivered to the court on Tuesday, 20 April. The county court judge dismissed the tenant’s application, holding that he had no jurisdiction to hear it because it had not been “made” within the four months after December 19. The tenant appealed, and one of the grounds upon which the majority of the Court of Appeal allowed the tenant’s appeal was that by reason of the county court’s direction to the post office not to deliver mail to the court office on that Saturday or Easter Monday, the post office were constituted agents to keep for the court the mail that would otherwise have been delivered. Giving his judgment in this case Sellers L.J. said at p. 315: “In the ordinary course the postal authorities would be the agents of the sender and mere postage of a sum of money or of an application or notice to the court would not normally be equivalent to delivery to the court; but here the circumstances are different. The court has expressly intervened and interfered with the ordinary postal facilities. The mail due to be delivered on Saturdays was withheld from delivery at the express request of the court. It was held at the local Post Office. For whom did the Post Office then hold the mail? Not, I think, for the sender because it was his desire that the delivery should be made in the course of post and he was no party to any postponement of delivery. It seems to me that the Post Office in these particular circumstances were made the agents of the local county court to hold on its behalf the mail which would normally have been delivered on the Saturday. It would appear that the tenant’s application would have reached the court in due time but for the special arrangements which the court made, and I see no reason why the tenant should be prejudiced by them.”

Davies L.J. also said at p. 319:

“This point is also a difficult one; but on the whole it seems to me that the right conclusion is that when the county court directed that mail which would ordinarily be delivered on the Saturday should [p.44] of [1971] 2 GLR 32 not be so delivered, but should be held by the Post Office until the following Monday, or in this particular case Tuesday, the county court were constituting the Post Office their bailees of the mail and accordingly it could rightly be said that the tenant’s application was made at latest on the Saturday.” I do not think that in the ordinary course of things a person who is required by law to make a payment into court can make a bank the agent of the court to receive such payment on behalf of the court. A bank in those circumstances, would become the agents of the payer only. But when the registrar of the court, whose duty it is to receive the payment, directs the payer to pay the amount through a bank, he makes the bank the agent of the court. In the particular circumstances of this case, I think the registrar of the High Court, Tamale, constituted the Ghana Commercial Bank his agents for the purpose of receiving the amount paid on 10 October 1969 on behalf of the petitioner as security for costs. If on that day the Tamale branch of the Ghana Commercial Bank had credited the registrar’s account with N¢200.00 there would have been no cause for complaint. The position was, therefore, that on 10 October 1969, the Ghana Commercial Bank, Tamale, received on behalf of the registrar payment of the sum of N¢200.00 as security for costs in connection with the petition. This amount was paid to him through the bank on his own directions. But Mr. Appiah’s main contention is that payment of the amount representing the security for costs through the bank was a departure from the rules of court, and therefore invalid. And this in turn also made the petition a nullity.

There can be no doubt that payment of the security for costs through the bank would not be payment according to the rules of practice and procedure. But Order 70, r. 1 states:

“Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”

The scope of this rule has been considered in several cases in England upon a rule which is identical in terms with our Order 70, r. 1. In Petty v. Daniel (1886) 34 Ch.D. 172, Kay J. said at p. 180: “I have no doubt that the meaning of the rule is that the Court or Judge may, after an irregular proceeding has been taken, as in this case, either set aside for irregularity or amend it, or otherwise deal with it as the Court shall think fit; but it is not to be treated as void.”

Recently in Pontin v. Wood [1962] 1 Q.B. 594, C.A. the court allowed a plaintiff to amend a technical flaw under Order 70, r. 1, even though the period of limitation had run. In his judgment Holroyd Pearce L.J. said at p. 609:

[p.45] of [1971] 2 GLR 32

“The Order gives power to amend and provides that non-compliance with the Rules shall not render the proceedings void unless the court directs. The tenor of the Order shows that it is directed to the curing of that which is capable of cure, to saving rather than destroying. I do not take the view that its tenor should be reversed merely because the period of limitation has expired. The courts will not, except in special circumstances, allow amendments that will take away a defence that has arisen under the statute. (Weldon v. Neal, see per Lord Esher M.R. (1887) 19 Q.B.D. 394, 395, C.A.). They will not add a new cause of action or allow a plaintiff to substitute a fresh case. (Marshall v. London Passenger Transport Board [1934] 3 All E.R. 83, C.A.; Batting v. London Passenger Transport Board [1941] 1 All E.R. 228, C.A.). But I do not accept that they should therefore refuse any normal aid which would be given as of course under Order 70 if no question of limitation arose—aid which is directed not to setting up a new cause of action or a new case, but to regularising the procedure of a known genuine case commenced before the time limit expired but containing technical defects.”

In In re Pritchard [1963] 1 Ch. 502, C.A. Lord Denning M.R., upon a consideration of Order 70, r. 1, said as follows at p. 513:

‘I know that it has often been said that, once a defendant has acquired the benefit of a Statute of Limitations, the courts will never allow the plaintiff to amend his proceedings or rectify any mistakes he has made, if by so doing the defendant would be deprived of the benefit of the statute. But that is far too wide a proposition. True it is that the plaintiff will not be allowed to introduce a new cause of action or substitute a fresh case, or rectify errors of substance, but he will be allowed to correct technical defects. If a plaintiff has commenced a known genuine case before the time limit has expired, but has made a technical slip in his procedure, then he will be allowed to rectify the defect if it can be done without injustice to the defendant.”

Upjohn L.J. also said in the same case as follows at p. 523:

“I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae.” It seems clear from the cases that Order 70, r. 1 can be invoked to regularise all cases of technical defects in procedure, provided the party praying in aid of the Order does not set up a new cause of action or a new case. The

[p.46] of [1971] 2 GLR 32 court will not refuse its aid simply because a question of limitation arises if a genuine case had been commenced before the time limit expired. The general rule is, therefore, that non-compliance with the rules of court does not fender any proceedings void, unless the court so directs. Order 70, r. 1 gives the court a discretion to deal with a breach of the rules as the court thinks fit.

It has been contended that under Order 65, r. 4 the manner and form in which security for costs is given can be directed only by the court or judge and that the term “court or judge” does not include a registrar.

Consequently, it is argued, the registrar was not competent to give directions in this matter, and therefore the payment made upon his directions was a nullity. With respect, I am unable to accept this argument, because I do not think that failure to obtain the direction of the court or judge, as required by the rules, will automatically void any act done, or any step taken, in the proceedings without the necessary direction. In the first place, there is a long line of decided cases which has established that failure to obtain the leave of the court or judge before taking a step in civil proceedings, where this is required by the rules of practice, does not necessarily render the whole proceedings a nullity, it is only an irregularity which the court in its discretion can rectify. I would refer briefly to a few of such cases. In Lloyd v. Great Western Diaries Co. [1907] 2 K.B. 727, C.A. it was held that the joinder of a cause of action for the recovery of land, which was forbidden by the rules, unless by the leave of the court or judge, was an irregularity and not a nullity

In Smythe v. Wiles [1921] 2 K.B. 66, C.A. there was an action for the recovery of damages for slander. The defendant did not enter an appearance to the writ, and the plaintiff signed an interlocutory judgment for damages to be assessed. By section 2 of the Juries Act, 1918, a writ of inquiry to assess damages in default of appearance or defence shall not issue without the leave of the court or judge, provided that where the claim is in respect (inter alia) of slander, either party shall, on an application in accordance with the rules of court, be entitled to insist on the issue of a writ of inquiry. By the rules of court, the application was to be by summons. The writ in this case was issued by a subordinate official in the office of the district registrar, without any application for summons and without reference to the registrar himself. It was held nevertheless that the omission to take out and file a summons was a mere irregularity and not a nullity.

In MacFoy v. United Africa Co., Ltd. [1962] A.C. 152, P.C., the delivery of pleadings in the long vacation without the leave of the court or judge, as was required under the relevant rule of court, was held to be an irregularity only, and not a nullity, and it was therefore a matter for the discretion of the court whether it should be set aside or not.

In Cooper v. Cooper [1964] 1 W.L.R. 1323, it was held that the failure to obtain the leave of a judge as required by rule 3 (2) of the Matrimonial Causes Rules, 1957, resulted in the filing of the petition being an irregularity which the court had jurisdiction to set aside, but not a nullity which [p.47] of [1971] 2 GLR 32 was incurable. In that case the court granted retrospectively that leave which should have been obtained when the petition was filed so that evidence in support of the petition could be heard. It seems clear, therefore, that in this case failure to obtain the direction of a judge as to the mode of giving the security for costs does not automatically make the payment through the bank a nullity. It is still a matter for the discretion of the court whether it should be set aside or not. In the second place, the word “court,” in relation to causes and matters in the High Court, is defined in Rule 2 of the Supreme Court (Civil Procedure) (Amendment) Rules, 1958 (L.N. 93 of 1959), as including the High Court of Justice, the Chief Justice and judges of the High Court sitting together or separately. And by article 113 (5) of the Constitution any justice of the High Court of Justice may exercise in court or in chambers all or any part of the jurisdiction vested in the High Court by the Constitution or any other law. A judge in chambers includes a master or a registrar, who are his delegates: per Lord Denning M.R. in Harkness v. Bell’s Asbestos & Engineering, Ltd. [1966] 3 All E.R. 843 at p. 845, C.A. Section 12 of the Courts Ordinance, as amended by section 4 of the Courts (Amendment) Act, 1958, gives a registrar of the High Court the power to issue all proceedings out of the registry and to receive all payments made into court. The registrar has no separate existence apart from the High Court, and I can find nothing fundamentally wrong in the registrar directing that money, which ought to be paid to him at the registry, should be paid to him through the bank, or into the account which he is required by law to keep with the bank. The application of Order 70, r. 1 to any particular case depends upon whether or not the proceeding is a nullity or a mere irregularity. If the procedural blunder is a nullity, then Order 70, r. 1 does not apply. It is not always easy to draw a line of distinction between a proceeding which is a nullity and that which is mere irregularity. But a useful test, suggested by Lord Denning M.R. in MacFoy v. United Africa Co., (supra), is whether the procedural blunder can be waived by the other party. If it can be waived, then it is only an irregularity and the court will apply Order 70, r. 1 to cure the defect. It is only when the defect is incurably bad and it cannot be validated by the subsequent act of the parties by waiver or taking any steps in the action that it becomes a nullity.

Now, applying this test to the proceedings in this case: Can it be said that the petition is invalid? The petition was filed at the court registry before the expiry of the last day for filing. It does not appear from paragraph 29 of N.L.C.D. 255 that the security for costs should be given on the same date as the date of the filing of the petition: both acts could be performed on separate dates. The main purpose of the security for costs which the petitioner is required to give by paragraph 29 of the Decree is only to ensure that a successful candidate in the election is not unnecessarily harrassed by frivolous petitions. The filing of the petition and the giving of security for costs are two separate steps in the proceedings. It has been held in Smalley v. Robey & Co., Ltd.[1962] 1 Q. B. 577, C.A. that the service of a defective writ for non-compliance with the English Rules of

[p.48] of [1971] 2 GLR 32 the Supreme Court was within the meaning of “proceedings” in Order 70, rr. 1 and 2, for that word was intended to apply not merely to the cause of action itself, but to all the day-to day steps in the action. The respondent conceded that before the expiry of the last day the petitioner had filed his petition. It is also conceded, or not denied, that on that late date the sum of N¢200.00 had been paid into the Ghana Commercial Bank, Tamale, on the directions of the registrar, as security for costs by the petitioner. If on that day the registrar had advised the bank to credit that amount to his account at the same bank, it would have been legitimate for him to issue a receipt to the petitioner for the payment made on that day. As we now know, the registrar did not so advise the bank, and he made no effort to contact the bank until two days later. Consequently there was a delay of five days in paying the money to the registrar. In In re Pritchard (supra) Lord Denning M.R. said at p. 516: “When an officer of the court itself makes a mistake, the consequences should not be visited on the unfortunate litigant, but they should be remedied by the court itself.” I agree with this observation.

Here the petitioner gave security for costs within the time limited by paragraph 29 of the Decree, but the mode of payment did not conform with Order 65, r. 4. The respondent had not been misled, nor had he suffered any hardship by reason of the payment of the security for costs into the bank. The truth of the matter is, that on the last date security for the respondent’s costs had been given, albeit irregularly. The money paid is now safely in the custody of the registrar. I am satisfied, having regard to all the circumstances, that this is an irregularity which can be waived without any injustice to the respondent, and that the defect in the procedure adopted by the registrar should not be regarded as invalidating the proceedings. I would, therefore, dismiss the appeal with costs.

JUDGMENT OF AMISSAH J.A.

I am also of opinion that this appeal should be dismissed. A number of interesting arguments on bills of exchange and privity of contract have been raised by counsel. I must confess, however, that I am not much impressed by these arguments. The issue, as has been said by my learned brother Azu Crabbe, is a simple one. The law requires that a person who presents an election petition must give security for costs by a certain date otherwise his petition would be invalid. It is agreed that with respect to the election in question the last day for the provision of the security was 10 October 1969. On that day the petitioner filed his petition in the Tamale High Court. If that petition was not to be invalidated he had to provide security for costs to the amount of N¢200.00 that very same day.

The usual manner for the provision of security is by payment of the amount involved by way of deposit into court. Such payment, when made, is to the registrar of the court. But security need not invariably be given in this way. It could, for example, be by way of a bond given, according to the rules, to the other party. The petitioner did not deposit the N¢200.00 with the registrar personally on that day. What happened was that his lawyer paid the money into the Ghana Commercial Bank at Accra and [p.49] of [1971] 2 GLR 32 asked for it to be transferred to the registrar at Tamale. Before paying the money the lawyer had contacted the registrar by telephone and told him what he intended to do. The registrar raised no objection. After he had paid the money the lawyer again telephoned the registrar to tell him that he had done so. Still there was no objection. The evidence was that the lawyer actually paid the money on behalf of the petitioner that day and in the manner he had told the registrar. Now, that is of some importance because if he had not, if, for example, he had paid the day after the final day, it cannot by any stretch of the imagination be said that the petitioner has given security for costs within the time allowed by the law. By that final day, however, the petitioner had done an act to the knowledge of the registrar of the court which made funds in the amount required by law available to satisfy the other party should he, the petitioner, lose his petition and be asked to pay costs. Not only did the lawyer pay the money into the bank in Accra but it was also transmitted to the bank’s branch in Tamale for the account of the registrar on that same day. The registrar keeps an account for official purposes at the bank. The objection raised in the circumstances turns out to be that by the end of the final day the petitioner had not put the money intended as security into the hands of the registrar.

It will be noted that all that paragraph 29 of the Representation of the People Decree, 1968 (N.L.C.D. 255), requires is that “within the time limited” the person seeking to present the petition “gives security for costs amounting to two hundred new cedis.” It does not specify the manner and form in which the security should be given. For that, we have to turn to the rules of court and to the prevailing practice in the courts. The only relevant rule I can see is rule 4 of Order 65 which says that: “In any cause or matter in which security for costs is required, the security shall be of such amount, and be given at such times, and in such manner and form, as the Court or Judge shall direct.” In this particular case the amount and the time for the security has been provided for already by the Decree. Only the manner and form is left for determination. If as to this, compliance with the rules requires that the petitioner should apply formally to the court or judge for an order giving directions, and I do not say that in our present state that is always necessary, then I should say that the petitioner in the circumstances of this case was at worst, guilty of an irregularity of the nature which could and, in my view, should be cured under Order 70 of the rules. But it seems to me, having regard to the practice followed in our courts, open to question whether even an irregularity had been committed.

As I said earlier, as to manner and form, it has been the usual practice to deposit the amount in cash with the registrar. Even if the expression “court or judge” does not include the registrar it has not been the practice for anyone with money to deposit in court in a particular case to go before a court or judge for directions only as to the manner in which he is to give his security. Everybody would consider the requirement for security satisfied if he simply went to the registrar and paid the money to him. In this case this same registrar consented to the petitioner paying the money

[p.50] of [1971] 2 GLR 32 to him through the Ghana Commercial Bank. I say that he consented because this has to be inferred from the fact that he raised no objection to the manner of payment suggested and after the money reached Tamale he was interested enough in it to keep chasing after it. And the money was paid and transferred to the Tamale branch of the bank on the proper day. It is true that it was not until 15 October that the registrar got a cheque for it, which incidentally he immediately lodged into his account at the same bank. The making of the cheque seems to me in the circumstances to be quite unnecessary. Obviously if the registrar kept moneys properly lodged with him at that bank, the belief that money paid to him through the bank would be safe must have been a factor which influenced him in consenting to the method of payment suggested.

In the light of all this, the objection assumes a very technical legal air. And we hear of arguments to the effect that payment to the bank is not payment to the registrar because the bank is not the registrar’s agent. May be not. But the reality of the matter is that the petitioner had divested himself of the funds at the appropriate time, the registrar had consented to the method of payment and the respondent has been in no way prejudiced by the act or the method adopted for its effectuation. If the question is therefore asked whether by the end of the day limited the petitioner had given security in the required amount I am inclined to the view that he had.

JUDGMENT OF ANIN J.A.

I also agree that this appeal should be dismissed for the reasons contained in the learned judgments of my brothers. I have had the benefit of reading the judgments beforehand, and I have nothing useful to add thereto.

DECISION

Appeal dismissed with costs.

T. G. K.