REPUBLIC v. CHIEF ACCOUNTANT, DISTRICT TREASURY, KUMASI; EX PARTE BADU [1971] 2 GLR 285

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 15 JUNE 1971

BEFORE: MENSA BOISON J.

CASES REFERRED TO

(1) Ex parte Nash (1850) 15 Q.B. 92; 19 L.J.Q.B. 296; 15 L.T. (o.s.) 111.

(2) R. v Eastbourne Corporation (1900) 83 L.T. 338; 64 J.P. 724; 16 T.L.R.546,,C.A.

NATURE OF PROCEEDINGS

APPLICATION for an order of mandamus to command the respondent to stamp an instrument without exacting a penalty.

COUNSEL

Bremah Andoh for the applicant.

S. Sampong, Assistant State Attorney, for the respondent.

[p.286] of [1971] 2 GLR 285

JUDGMENT OF MENSA BOISON J.

This is an application for a rule absolute for an order of mandamus directing the chief accountant of the Government Treasury Department to deliver a mortgage deed No. 2463/70 (hereafter to be referred to as the deed) executed on 13 July 1970 to the applicant.

The respondent is charged with the collection of duties under the Stamp Act, 1965 (Act 311). By section 15 (1) and (2) it is provided that:

“(1) Except where express provision is made to the contrary by this Act, any unstamped or insufficiently stamped instrument may be stamped with an impressed stamp at any time within two months after its execution, on payment of the unpaid duty.

(2) No instrument shall be so stamped after the time limit mentioned in subsection (1) of this section, except upon payment of the unpaid duty in addition to a penalty of twelve cedis.”

It is common ground that on 22 July 1970 the applicant lodged with the District Treasury, Kumasi, the deed executed on 13 July 1970, for an assessment and payment of the necessary stamp duty. To escape payment of any penalty it meant the deed must be stamped on or before 12 August 1970. The case for the respondent is that after lodgment of the deed on 22 July, neither the applicant nor his solicitor called to pay the duty till September 1970. As penalty was then due, the respondent refused to stamp the deed unless the penalty was paid.

According to the unopposed affidavit of the applicant the deed was accompanied by the prescribed Form P. D. 1 completed as required under section 16 of Act 311. Among the particulars was the name and address of the applicant. Again on the unchallenged affidavit of the applicant when his solicitor lodged the deed with the respondent, the respondent told the solicitor that he, the respondent, was to send the deed to the Lands Department for assessment.

The question is how was the applicant or his solicitor to know that the deed has been returned to the respondent from the Lands Department, unless the respondent informed the applicant by the address given on the Form P.D. 1. It is not disputed that the respondent did not inform the applicant. Was the applicant expected to stop his business as a citizen and to keep running up and down to the respondent to find out whether the deed had been assessed by the Lands Department?

When an enactment imposes a penalty upon a citizen, I think it is a fair interpretation that the penalty should be exigible only as a result of default of the citizen. In this case the chief accountant as a revenue collector sat idle upon his seat, without communicating to the applicant. On the contrary his case is that the applicant and other citizens like him should cease to perform all their daily occupations and continually queue up at his door to find out when the pleasure of the assessment authority was to be expected. In fact they are to stop going about their very business by which means the citizen was to pay for the stamp duty. An attitude of

[p.287] of [1971] 2 GLR 285 this nature by a public authority diminishes the economic productivity of the citizen in his private work, and spells economic stagnation for the nation as a whole. In my opinion the stand of the respondent, in failing to communicate to the applicant, but dutifully demanding the penalty due amounts to oppression by a public officer.

But the case of the applicant goes further than this. His solicitor made inquiries within the prescribed two months period in order to pay the assessed duty, but he was put off on two occasions by the respondent as the assessment had not been received from the Lands Department. By his affidavit the respondent denies this. I have regard to the fact that the respondent did not choose to say when in fact the assessment was completed by the Lands Department and transmitted to the respondent. Further there is all the probability that the applicant as a shrewd businessman (as he was disclosed to be a moneylender) would be most anxious not to pay a penalty. I am therefore satisfied that before the expiration of the stipulated two months, the solicitor was ready to pay the duty, but for the inability of the respondent to tell him what the assessment was. It seems to me that the moral is that it is not enough to employ the forms and content of sophisticated legislation if the machinery including the human element is wanting. That appears to have been the position here, where the chief accountant does nothing, until penalty is due and calls upon the applicant to pay.

On the above findings of facts I have to resolve whether mandamus will lie to compel the respondent to deliver up the deed to the applicant, upon payment, as the applicant contends, of the prescribed stamp duty only without a penalty.

Mr. Bremah Andoh for the applicant contends that the true meaning of section 15 (1) of Act 311 is that once the deed was lodged within two months of execution it should attract the normal unpaid duty irrespective of the date on which the deed may be stamped with the impressed stamp. In other words as he lodged the deed within two months of execution, there cannot be any penalty even if the stamping was done three months after execution. In the alternative he contends that the penalty imposed by section 15

(2) of the Act cannot be exacted from the applicant as the delay in stamping was the default of the chief accountant, i.e. the respondent. I think the words in section 15 (1) of the Act are clear and admit of no ambiguity. The stamping with an impressed stamp must be made within two months of the execution of the instrument. When the stamping falls outside the prescribed two months the instrument attracts a penalty under subsection (2).

I think what this case really is, is that as the failure to have the deed stamped within the prescribed two months, was the default or neglect of the respondent the order of mandamus should direct the respondent to deliver up the deed impressed with the normal unpaid duty without the penalty.

[p.288] of [1971] 2 GLR 285

The order of mandamus lies against public officials in the performance of their public or quasi-public legal duty, to require them to carry out their duty. The object is not to review or control what such officials have done or what they do, but to compel them to act. The act may be imposed on the official by an enactment, and the order of mandamus does no more than to command that to be done which the enactment requires to be done. So that mandamus is not a mode of trying questions whether an act professedly done in pursuance of a statute was really justified by the statute. (See Ex parte Nash (1850) 15 Q. B. 92 per Lord Campbell C.J.) It follows that the duty to be commanded should be legally possible at the time. Accordingly the court will not by mandamus order something which is impossible by reason of the circumstance that the doing of the act would involve a contravention of the law. Thus in the case of R. v. Eastbourne Corporation (1900) 83 L.T. 338, C.A., an order for mandamus was refused because it was sought thereby to compel the approval of plans authorising buildings which were not in accordance with statutory requirements.

In the instant case there is a statutory requirement which is provided by section 15 (2) of the Act,.namely, that no instrument shall be stamped after the time limit mentioned in subsection (1) of that section (i.e. after two months of execution) except upon payment of additional penalty. Section 15 (2) does not involve what may be described as mental element or “mens rea” before it can be invoked. So that it is no answer that the delay was not by the negligence or default of the applicant. All that one has got to ask himself is can this court looking at section 15 (2) of the Act compel the respondent to stamp the document on payment of the unpaid duty without the penalty? That in my opinion will not be commanding the respondent to do what he is legally bound to do. To so order will be to contravene the law under which we have our being.

The conclusion I have reached is far from endorsing the conduct of the chief accountant, which has damnified the applicant, but the applicant seeks the remedy of mandamus and I am of the opinion that by it he falls. Accordingly the application is dismissed. There will be no order as to costs.

DECISION

Application refused.

K. T.