REPUBLIC vs. THE REGISTRAR, MEDICAL AND DENTAL BOARD; EX PARTE CHRISTIAN [1973] 2 GLR 323

CASES REFERRED TO

(1) Le Neve v. Le Neve (1747) Amb. 436; 3 Atk. 646; 1 Ves. Sen. 64; 27 E.R. 291.

(2) De Verteuil V. Knaggs [1918] C.A. 557; 87 L.J.P.C. 129, P.C.

(3) James v. Chartered Accountants Institute (1907) 98 L.T. 225, C.A.

(4) State v. Asantehene’s Divisional Court B1; Ex parte Kusada [1963] 2 G.L.R. 238, S.C. (5) Hope v. Hope (1854) 4 De G.M. & G. 328; 2 Eq. Rep.1047; 23 L.T.Ch. 682; 23 L.T. (o.s.) 198; 2 W.R. 545; 43 E.R. 534.

(6) Kistler v. Tettmar [1905] 1 K.B. 39; 74 L.J.K.B. 1; 92 L.T. 36; 21 T.L.R. 24; 53 W.R. 230, C.A. (7) Lady de la Pole v. Dick (1885) 29 Ch.D. 351; 54 L.J.Ch. 940; 52 L.T. 457; 33 W.R. 585, C.A. (8) R. v. South Holland Drainage Committee Men (1838) 8 Ad. & El. 429; 1 Per. & Dav. 79; 8 L.J.Q.B. 64; 112 E.R. 901.

(9) Giusti Patents and Engineering Works Ltd. v. Maggs [1923] 1 Ch. 515; 92 L.J.Ch. 345; 129 L.T.

438; 40 R.P.C. 199.

(10) R. v. Deputies of the Freemen of Leicester (1850) 15 Q.B. 671; 117 E.R. 613.

(11) R. v. Chief Immigration Officer Manchester Airport; Ex parte Insah Begum [1973] 1 W.L.R. 141;

[1973] 1 All E.R. 594, C.A.

NATURE OF PROCEEDINGS

APPEAL from a ruling of the Accra High Court granting an order of certiorari for the purpose of quashing the decision of the Medical and Dental Board removing and erasing the name of the respondent from the [p.326] of [1973] 2 GLR 323 register of medical practitioners. The facts are fully stated in the judgment of Azu Crabbe C.J.

COUNSEL

Mrs. Bamford Addo, Principal State Attorney, for the appellants.

Alhaji Kwaw Swanzy for the respondent.

JUDGMENT OF AZU CRABBE C.J.

This is an appeal from the ruling of Griffiths—Randolph J. dated 19 April 1973 whereby he directed an order of certiorari to issue to bring to his court the register of medical practitioners for the purpose of quashing the decision of the Medical and Dental Board removing and erasing the name of the respondent from the said register.

The facts of this case, in chronological order, are as follows: In July 1972, an inquiry was conducted by the Medical and Dental Board into an allegation of professional misconduct by the respondent in accordance with the provisions of the Medical and Dental Act, 1959 (No. 36 of 1959). By virtue of section 17 (2) of the Act, the respondent was entitled to be represented by a legal practitioner, and the respondent attended the sittings of the board with his solicitor, Dr. Seth Twum. At the conclusion of the evidence, the board adjourned its proceedings for an indefinite period to consider its decision. On 1 November 1972, when the findings and decision of the board were yet to be pronounced, Dr. Seth Twum addressed a letter to the Secretary, Medical and Dental Board. In my view, the letter is so important in this case that I produce it in full:

“D.747/4, Kimberley Avenue, P.O. Box 197, Accra, Ghana.

1st November, 1972.

Onimpa Akuoko & Co., Barristers & Solicitors.

Our Ref. ST/JAM.

Your Ref. MDB-19/SF. 1 (a).

Dear Sir, Dr. H. Ekow Christian I refer to your letter of the above reference informing my client of the proposed resumption of the above enquiry.

I understand from my client that he has written to you to say that he is travelling outside the country on 5th November, 1972.

As the only matter left is the giving of a ruling I hope the Board will dispense with my client’s presence on the 10th of November and let me have a copy of your ruling as soon as practicable after it has been delivered.

Yours faithfully, (Sgd.) Dr. Seth Twum.

The Secretary, Medical & Dental Board, Ministry of Health, Accra.”

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Accordingly, the following letter in reply was addressed to Dr. Seth Twum from the office of the Registrar of the Medical and Dental Board:

“Medical and Dental Board, MDB—19/SF. 1 (a) P.O. Box M. 44, Accra.

6th November, 1972.

Dear Sir, Disciplinary Inquiry Involving Dr. Henry Ekow Christian, Medical Practitionern.

Reference your No. ST/JAM dated 1st November, 1972.

I forward, herewith, the Decision of the Medical and Dental Board and copies of the Proceedings covering the six sittings.

2. Please acknowledge receipt.

Yours faithfully, (Sgd.) Dr. P. M. J. PHILLIPS, For Registrar, Medical and Dental Board.

Dr. Seth Twum, Onimpa Akuoko & Co., Barristers & Solicitors, P.O. Box 197, Accra.”

Though the respondent was abroad at this time, he said that he read about the report of the board’s decision in a Ghanaian newspaper, and that consequently on 3 December 1972 he instructed Dr. Seth Twum by cablegram to file an appeal on his behalf against the findings and decision of the board in accordance with section 19 (1) of the Medical and Dental Act, 1959. On 6 December 1972 Dr. Seth Twum accordingly filed an appeal in the Court of Appeal, but this unfortunately turned out to be the wrong court. On 8 February 1973, after a search at the High Court registry had revealed that no appeal had been lodged there, the board ordered the registrar to erase the name of the respondent from the register of medical practitioners in pursuance of section 19 (3) of the Act. On Friday 9 February 1973, the following notice was published in the Ghana Gazette, No. 10:

“Removal From Medical Practitioner’s Register The public is hereby notified that with effect from 8th February 1973 the name ‘Henry Ekow Christian, Medical Practitioner’, has been erased from the register of medical practitioners.

Dr. P. M. J. Phillips Acting Registrar, Medical and Dental Board.”

[p.328] of [1973] 2 GLR 323

On 21 February 1973 the solicitors of the respondent filed on his behalf in the High Court, Accra, an application praying for leave to issue an order of certiorari directing that the register of medical practitioners be brought into the High Court for the purpose of quashing “the decision of the Medical and Dental Board removing and erasing the name of Dr. Henry Ekow Christian, medical practitioner from the said register of medical practitioners as published in the Ghana Gazette of 9 February 1973.” Annan J.A. (sitting as an additional judge of the High Court of Justice) granted leave on 12 March 1973 and the motion was argued eventually before Griffiths-Randolph J. on 29 March 1973.

Before concluding his ruling, Griffiths-Randolph J., said: “The important question, which this case raises is as to what is proper service of the findings and decision of the board; and the relevant sections of Act 36 of 1959 and N.R.C.D. 91 are.” Then after reproducing section 19 (1) of the 1959 Act, and subsections (1) and (2) of section 46 of the Medical and Dental Decree, 1972 (N.R.C.D. 91), the learned judge observed as follows:

“Therefore there is no express provision for serving the medical practitioner through his solicitor; but rather there is a mandatory duty on the board to ‘send’ the findings and decision to the medical practitioner at his known address, which may be the one furnished by him in connection with his registration as a medical practitioner or appeared in his correspondence. In fact section 17 (2) of Act 36 of 1959 provides that the medical practitioner may be represented by a legal practitioner; and if it was intended that service of the findings and decision on the lawyer will be sufficient, the Act would have said so. Besides Dr. Twum asked the board to dispense with his client’s presence, and not to dispense with service on him by post.”

In the opinion of the learned judge, service of the copy of the board’s findings and decision on Dr. Seth Twum did not meet the requirement of the relevant provisions of the law. Concluding his ruling, the learned judge said:

“In the circumstances, the provisions of the statutes I have mentioned above were not strictly complied with, and the board therefore had no jurisdiction to make the order for the removal or erasure of the name of the medical practitioner from the register of medical practitioners. Hence certiorari would issue to quash that order, and consequently the removal or erasure of Dr. H. Ekow Christian’s name from the register of medical practitioners.”

The sole issue in this appeal is whether service of the findings and decision of the board upon the respondent’s solicitor was sufficient service upon the respondent. With all due respect to the learned judge, I think that he erred in regarding the provisions of the Medical and Dental Decree, 1972 (N.R.C.D. 91), as germane to the determination of the issue before him. The Medical and Dental Decree, 1972, was

[p.329] of [1973] 2 GLR 323 made on 31 July 1972 and it only came into force on 4 August 1972, when it was published in the Ghana Gazette. It follows, therefore, that the inquiry out of which this appeal has arisen had begun some time before the coming into force of the Medical and Dental Decree, 1972. And the Medical and Dental (Amendment) Decree, 1972 (N.R.C.D. 108), reads:

“1. Section 55 of the Medical and Dental Decree, 1972 (N.R.C.D. 91) is hereby amended by the substitution for subsections (4) thereof, of the following new subsections:

(4) Notwithstanding the provisions of this Decree, until the first meeting of the Council established by this Decree:

(a) the Medical and Dental Board in existence immediately before the commencement of this Decree shall continue in existence with the powers and functions specified in the Medical and Dental Act, 1959 (No. 36).

(b) the Registrar of the Board shall continue to hold office with the same powers and functions as he possessed under the Medical and Dental Act, 1959 (No. 36).

(5) Notwithstanding the repeal by this Decree of the medical and Dental Act, 1959 (No. 36), all disciplinary proceedings commenced under that Act before the commencement of this Decree shall be continued and determined in accordance with the provisions of that Act and Rules made thereunder, and any appeal in respect of any such disciplinary proceedings shall be brought, heard and determined in accordance with the provisions of that Act.’

2. This Decree shall be deemed to have come into force at the same time as the same Medical and Dental Decree, 1972 (N.R.C.D. 91).”

The provisions of this amending Decree (N.R.C.D. 108) make it plain beyond argument that the proceedings of the inquiry in this case could be conducted only in accordance with the Medical and Dental Act, 1959.

The only provisions of the Medical and Dental Act, 1959, which are crucial in the determination of the issue of whether service on the legal representative is as good as service on the medical practitioner are contained in section 19 (1) The question is whether the word “practitioner” used in this subsection should be widely interpreted to include the legal practitioner mentioned in section 17 (2) or solicitor of the “practitioner.” It is a cardinal rule of interpretation that the words of an enactment must be interpreted as bearing their natural and ordinary meaning. But the courts lean against a construction that leads to absurdity, injustice and inconvenience. There is no question that the respondent employed Dr. Seth Twum as a legal representative, and I

[p.330] of [1973] 2 GLR 323 am satisfied that in applying for the copy of the board’s findings and decision Dr. Seth Twum acted on the authority of the respondent. I am further satisfied that the respondent put forward Dr. Seth Twum as the person through whom he could be served. It seems clear that service of the findings and decision of the board reached the respondent, because he gave instructions for an appeal to be filed on his behalf. It is also clear from paragraph (2) of Dr. Seth Twum’s letter dated 1 November 1972 and having regard to all the circumstances, that he must have known the respondent’s forwarding address. In my view, if the word “practitioner” were to be given a restricted meaning it would lead to an absurd result, because a medical practitioner, who has cause to suspect that there will be an adverse finding against him, will evade service of the finding and decision of the board on him by going outside the territorial limits of Ghana. He will then set up practice in any foreign land and will thus frustrate the purpose of the inquiry into his professional misconduct. Such a narrow interpretation would defeat the object of the Act, and it should be avoided. A solicitor, acting under a retainer, is the agent of his client, and has an implied authority to accept service of process and appear for the client. As between client and opponent, the client is bound by every act of his solicitor in the ordinary course of practice. It has long been settled that actual or constructive notice obtained by an agent is in most cases notice to the principal: see Le Neve v. Le Neve (1747) Amb. 436. Notice acquired by the agent in the same transaction affects the principal, if it is so material to the transaction as to make it the duty of the agent to communicate it to the principal.

The respondent left Ghana without notifying the registrar of his forwarding address or change of address, and as a general rule, a person who by his obstructive conduct or negligence or default has impeded the service of notice of a court process on him cannot afterwards be heard to complain that he did not receive actual notice: see De Verteuil v. Knaggs [1918] A.C. 557 at pp. 560-561, P.C. and James v. Chartered Accountants Institute (1907) 98 L.T. 225, C.A. The object of service of a writ or order or other process of court proceedings is to give notice to the party affected, so that he might be aware of, and be able to resist that which was sought against him, and where that had been done, as in this case through his local agent, so that the court was perfectly satisfied that notice of the writ or order had reached him, everything had been done that could be required: per Korsah C.J. in State v. Asantehene’s Divisional Court B1; Ex parte Kusada [1963] 2 G.L.R. 238 at p. 246, S.C. In that case I also said at p. 252:

“It seems to me clear that where a person has appointed another as his agent or representative for a general purpose that other becomes his alter ego and service of a process upon him becomes an effective service upon the principal creating the agency. Personal service is not required in these circumstances except when a person is to be made criminally responsible. Thus in Tanham v. Nicholson

[p.331] of [1973] 2 GLR 323

((1872) L.R. 5 H.L. 561), service of a notice on the tenant’s daughter who was managing the tenant’s business at the time was held to be prima facie evidence of service on the tenant.”

In State v. Asantehene’s Divisional Court B1; Ex parte Kusada (supra), the case of Hope v. Hope (1854) 4 De G.M. & G. 328 was cited in the judgments, and the following passage from the judgment of Cranworth L.C. at pp. 341-342 was quoted in [1963] 2 G.L.R. 238 at pp. 271-272, C.A. as follows:

“According to the rules of law, service ought either to be made personally, or at least by leaving notice at the dwelling-house of the party. But the rule of this Court differs in this respect from that of a Court of law.

Personal service, or service at the dwelling-house, may be impossible, because the Defendant may be abroad; and yet it might be very unfit that he should not be litigated with in the same manner as if he were here, as he might have agents competent to represent and actually representing him in this country. Therefore, in cases where a Defendant is abroad, the question is, whether there is any person here who may be fitly served, and service upon whom may be treated as equivalent to service upon the absent person himself. Now, this has been allowed in a variety of cases; for instance, where there has been an agent in this country managing all the affairs of a Defendant who is abroad, and regularly communicating with him upon his affairs, or where he has an agent here specially managing the particular matter involved in the suit. In such cases, the Court has felt that it might safely allow service upon the agent to be deemed good service upon the person abroad because the inference is irresistible that service so made upon the agent is service on a person either impliedly authorized to accept that particular service, or who certainly will communicate the process so served to the party who is not in this country to receive it himself. The object of all service is of course only to give notice to the party on whom it is made, so that he may be aware of and may be able to resist that which is sought against him, and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required’.”

The rule on personal service was again considered in Kistler v. Tettmar [1905] 1 K.B. 39, C.A., and there Matthew L.J. said at p. 45:

“It was argued for the judgment debtor that the rule requiring personal service of an order, before a writ of attachment can be issued for disobedience of it, admitted of no exception; and consequently that in this case no writ of attachment could issue even although the judgment debtor was well aware of the existence of the order, and was evading the service of it. This is a somewhat startling proposition, for, after all, the only object of the rule requiring personal service is that the party should know what the

[p.332] of [1973] 2 GLR 323 order was and the consequences of disobeying it. I do not think that there is any authority for this proposition, which would lead to a manifest absurdity, namely, that the Court would be rendered powerless to enforce its order if the person against whom the order was made chose to lock himself up, and so prevent personal service upon him. My brother Stirling has referred to an authority which establishes that there is no such absolute rule as is contended for; and that the general rule that there must be personal service is subject to an exception, and, where the existence of the order has been brought to the knowledge of a person who is evading personal service in the usual way, the Court can enforce its order by attachment.”

In Lady de la Pole v. Dick (1885), 29 Ch.D. 351, C.A., the court considered the effect of service of notice on solicitors representing the plaintiff, and in the course of his judgment, Cotton L.J. said at pp. 356—357:

“Rolle C.J. lays down in Lawrence v. Harrison (Sty. 426) a principle on which we may act. He says, ‘The only question is, whether the warrant of attorney be determined by the judgment given in the suit wherein he was retained; and I conceive it is not, for the suit is not determined, for the attorney after the judgment is to be called to say why there should not execution be made out against his client, and he is trusted to defend his client as far as he can from the execution.’ According to that principle, until the judgment has been worked out, there is a duty imposed on the solicitor on the record to defend his client against any improper steps taken for the purpose of enforcing the judgment. Until that time, therefore, the solicitor on record must be taken as between him and the opposite party, to represent the client, unless the client not only discharges him but substitutes another solicitor on the record.”

I think that by analogy one can say that publication of the medical practitioner’s name in the Ghana Gazette by the Registrar of the Medical and Dental Board is like a judgment creditor going into execution after judgment, and, therefore, service of the findings and decision of the board on the solicitor ought to be in order.

In this case the evidence shows that though the respondent went abroad he retained Dr. Seth Twum as his solicitor, and that Dr. Seth Twum knew of his address. Acting, no doubt, on the instructions of the respondent, Dr. Seth Twum applied for a copy of the findings and decision of the board, and the copy was accordingly served on him. This copy was so vital to the interest of the respondent as to make it the duty of Dr. Seth Twum to communicate the information to him. The information must have been communicated to the respondent, because subsequently he instructed Dr. Seth Twum to file an appeal on his behalf.

[p.333] of [1973] 2 GLR 323

As a solicitor, Dr. Seth Twum was the agent of the respondent, and service of the findings and decision on the solicitor would be service on his client. I am satisfied that the word “practitioner” in section 19 (1) of the Medical and Dental Act, 1959, includes the solicitor or the legal practitioner, who appeared for the “practitioner” at the inquiry.

There is one last point. Section 19 (1) does not prescribe any special form of procedure whereby the practitioner can be served with the findings and decision of the board. But section 5 (1) of the Act casts a duty on the registrar to publish once a year as soon as may be convenient after 1 January in the Ghana Gazette lists containing the names, addresses, dates of registration, and qualifications of all registered medical practitioners and dentists. By section 5 (2) of the Act the registrar shall remove from the register the name of any person who has died or whom the registrar has reason to believe has left Ghana and does not intend to return thereto. It seems to me therefore, that service of the findings and decision of the Medical and Dental Board effected at the registered address, either by delivering the document to someone there or through the post, should be sufficient service on the medical practitioner who has been registered: see James v. Chartered Accountants Institute (supra); also section 13 (1) of the Interpretation Act, 1960 (C.A. 4). In this case, however, the registrar served the findings and decision on the respondent’s solicitor, and the evidence shows that the respondent in fact had notice of the findings and decision. In spite of all this, he applies for an order of certiorari to quash the erasure of his name from the register of medical practitioners. The granting of certiorari is discretionary, and this special remedy will not be granted ex debito justitiae to a person who has by his conduct debarred himself from getting it: see R. v. South Holland Drainage Committee Men (1838) 8 Ad. & E1. 429. An applicant who had notice of proceedings and had actually taken steps to protect his interest on appeal, albeit abortive, cannot afterwards complain that he did not receive proper notice, and his application for certiorari ought to be refused.

In my judgment, the decision appealed from is wrong, and I would, therefore, allow the appeal and set aside the decision of the court below and would restore the erasure of the respondent’s name in the register of medical practitioners.

JUDGMENT OF APALOO J.A.

I have reached the same conclusion but by a slightly different process of thought. But in view of the apparent novelty of the issues and out of deference to the full and fair argument addressed to us, I thought I should express my conclusion in my own words.

The respondent was a registered medical practitioner. Some time in July 1972, the Medical and Dental Board conducted an inquiry into charges of professional misconduct against him. The respondent availed himself of the services of a legal practitioner—a Dr. Twum. The latter represented him at the inquiry. When the proceedings came to an end, the board adjourned to consider its decision. The evidence shows that there were in all six sittings. It would seem that the board reached its

[p.334] of [1973] 2 GLR 323 decision at some time before 1 November 1972. It then fixed 10 November for announcing this and wrote to the respondent to this effect. That date did not prove suitable to the respondent. So he instructed his lawyer to write to the board about this and request that his presence be excused.

The lawyer, by a letter dated 1 November 1972, wrote to the board informing it of his client’s projected absence from Ghana and asking that he be excused personal attendance at the resumed inquiry on 10 November. He gave no indication in his letter when the respondent was likely to return to Ghana. Instead, he asked that a copy of the decision be supplied him “as soon as practicable after it has been delivered.” The board acceded to this request and within six days of announcing its decision, supplied to the lawyer not only the decision but also “the proceedings covering the six sittings.” The respondent swore that when he became aware of the adverse decision of the board in a newspaper while abroad, he instructed his lawyer to appeal against the decision. It is to be noted that it is the self-same lawyer who represented him at the inquiry and who conducted the correspondence with the board on his behalf. The evidence shows that the lawyer duly appealed. The appeal was made to this court.

By section 19 (1) of the Medical and Dental Act, 1959 (No. 36 of 1959), under which the inquiry was conducted, an appeal against the sanction imposed by the board lies to the High Court. The reason why the appeal was made to this court seems to have been this: either while the inquiry was in progress or at its conclusion, the Act of 1959 was repealed and replaced by the Medical and Dental Decree, 1972 (N.R.C.D. 91). That Decree came into force on 4 August 1972 and provides that where the board ordered either the removal of the name of the practitioner from the register or his suspension from practice, the latter shall be entitled to appeal within 21 days to the Court of Appeal. But section 55 of this Decree was itself amended by the Medical and Dental (Amendment) Decree, 1972 (N.R.C.D. 108), and the right of appeal in a case like the present, was restored to the High Court. This amendment Decree itself became operative on 6 September 1972. It seems plain that the respondent’s solicitor was not au fait with this amendment or the proceedings would not have taken the turn they did.

On the alterations in the law, the board seems to have been better informed. Subsection (3) of section 19 enjoined the board not to erase the name of the practitioner (this being the sanction the board imposed) until after the statutory period of 21 days allowed for appeal and after the board has ascertained that no appeal has been lodged, or if lodged, has been disposed of or abandoned. The board did not act precipitately. It waited for almost three months, that is, until 9 February 1973. When it ascertained that no appeal was lodged in the forum designated by law for this purpose, it proceeded to erase the respondent’s name from the register. It caused this to be published in the Ghana Gazette of 9 February 1973.

[p.335] of [1973] 2 GLR 323

It is then that the respondent or his legal adviser appeared to have realized his error. He then moved the High Court for an extension of time to appeal. This was because the time limited by the statute for the lodgment of appeal had long past. The application failed. If it had succeeded, the application which is the subject—matter of this appeal, would not have seen the light of day. The respondent then moved the High Court for an order of certiorari to bring to that court, “the register of medical practitioners and quash the decision of the Medical and Dental Board removing and erasing” his name. The stated ground for this application was that the respondent was not served with a copy of the board’s decision which, the respondent argued, was a statutory prerequisite for the erasure of his name. The board contended that service has in fact been effected on the respondent. It conceded that such service was not effected on the respondent in person, but on his lawyer. The board therefore argued that it complied with the duty laid on it by section 19 of Act 36 of 1959, and that the erasure of the respondent’s name was lawful.

Faced with this problem, the learned judge, Griffiths-Randolph J. asked himself the question: what is the proper service of the findings and decision of the board under section 19 of Act 36 of 1959? His answer was that it must be personal service and as ex concessisses, there was no such service, the judge concluded that the provisions of the statute were not strictly complied with and therefore the board had no jurisdiction to make the order for the removal or erasure of the name of the practitioner from the register. He accordingly ordered it to be quashed.

The board takes issue with him on this appeal. In its grounds of appeal, it claimed that the judge erred in three specified respects, most germane to the point at issue being that “the learned judge erred in holding that the service of the findings of the board upon Dr. Christian’s solicitor is not sufficient service upon Dr. Christian.” On this ground, it was submitted for the board that as the respondent was himself out of the country and out of reach, service of the findings on his solicitor was sufficient compliance with section 19 of Act 36 of 1959. In any case, it was urged that what was of importance was that the practitioner should become cognisant of the decision of the board and consider his position in the light of it. It was said the practitioner in this case well knew the decision of the board. The respondent’s contrary argument was terse and to the point. It was that the service required by section 19 was personal and nothing short of that would suffice. It was said the reason for this was that since the proceedings were punitive in nature, it was imperative that section 19 should be observed to its letter. In so far as material, the relevant provision of section 19 (1) reads:

“If . . . the Board in view of the nature of their findings decide to order the Registrar to remove the name of the practitioner from the register, or to make any order as to costs in relation to the proceedings, the Board shall cause a copy of the findings and decision to be served upon the practitioner . . .”

(The emphasis is mine.)

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The language used by this section inclines me to think that the service contemplated by the Act is service on the practitioner personally. It does not seem to me that the object for which the service is required to be effected, can be achieved by merely supplying the findings to a lawyer whose retainer may well have come to an end with the conclusion of the hearing. It is the practitioner who must form his own judgment whether he wishes to accept the decision and suffer the penalties imposed or whether he would opt to have the adverse finding vacated by an appellate tribunal. In view of the somewhat punitive nature of the sanction, I would feel disposed to resolve any doubt that the language of the section is susceptive to, in favour of the practitioner and hold that personal service on the practitioner would seem more likely to reflect the true legislative intent on this matter.

I notice that section 13 (1) of the Interpretation Act, 1960 (C.A. 4), provides statutory guidelines in a case like the present. It enacts that where a document requires to be served but the manner of such service is not designated, it can be done by one of five methods but put personal service in the fore front. It is not necessary to reproduce these, but personal service aside, the board could properly claim to have effected service in compliance with section 19 (1) of the Act, if it had sent it to the practitioner’s known address by registered post, or delivered it to a person of the apparent age of over sixteen years at his usual known place of abode or business. It did not claim to have done any of these things and its counsel seems to have founded its main argument on the service effected on the practitioner’s lawyer.

Accordingly, if this matter were as cut and dried as this, I should, for my part, go along with the contention of Mr. Kwaw Swanzy and disaffirm the equally well pressed submission of Mrs. Bamford Addo. But I think the mandatory duty cast on the board by section 19 can be discharged, if there is evidence from which a reasonable jury can conclude that the practitioner waived personal service or impliedly authorized service on his agent. In my judgment, this is the crucial question in this case.

Section 17 of the Act of 1959, permitted the practitioner to be represented by a legal practitioner and as I said, the respondent procured the services of Dr. Twum in this respect. The proceedings of the inquiry concluded in July. The notification of that decision to the respondent was fixed for 10 November. The respondent was informed of this. He chose to be absent and indeed left the jurisdiction. He handed to his lawyer the letter notifying him of the date and must have authorized him to write to the board to excuse his absence. The lawyer dutifully did so. The lawyer coupled the request for dispensation of the respondent’s personal attendance with a request for an expeditious supply to himself of a copy of the decision.

The inference which is apparent to common sense from this, is that the respondent authorised his solicitor not only to request the board to

[p.337] of [1973] 2 GLR 323 excuse his absence, but also to supply to the latter on his behalf, the decision which the board was under an obligation to serve him with. That this is how the board understood it, is shown by the prompt way in which it reacted. It quickly supplied to the respondent’s lawyer not only the decision, which the board had a duty to supply, but the proceedings as well. The drawing of this inference is clinched by the respondent’s own sworn conduct. He said when he read the decision of the board in a newspaper while abroad, he cabled his self-same lawyer to lodge an appeal on his behalf. It seems reasonable to think that the respondent must have believed that his lawyer had, in the meantime, obtained a copy of the decision which he authorized him to obtain and was therefore possessed of sufficient material to lodge an appeal with. The lawyer again, dutifully carried out the respondent’s instructions and lodged an appeal. It turned out, however, that owing to the intervention of legislation, the appeal was lodged in the wrong court. In my judgment, there was service of the board’s findings and decision on the respondent’s alter ego and in any event, the respondent debarred himself from insisting on personal service. Unlike the learned judge, I think the board has complied with the provisions of section 19 (1) of the Act of 1959 and certiorari does not lie. In my opinion, the judge’s conclusion was based on a ground that was technical and narrow. This case should be decided as a matter of construction and on wider policy grounds.

Even if the evidence had not enabled me to hold that the respondent impliedly authorized the board to deliver a copy of its decision to his agent, I would have felt no disposition to accede to the application for the prerogative order of certiorari. This relief, as is well known, is discretionary and is not granted as of right. I am anything but satisfied that the respondent’s own conduct in this matter, entitled him to the exercise of the court’s discretion. The disciplinary proceedings must have been a matter of some importance to him as a decision might affect his future and livelihood. Yet it appeared right to him to leave this country only days before the decision was due to be announced. On his own showing, he had a reliable knowledge of the decision of the board while still out of this country. The object which section 19 of the 1959 Act seeks to achieve is not only to apprise the respondent of the board’s decision but to enable him, if he thought fit, to have it vacated in a court of justice. He availed himself of this provision and appealed against the decision. This appeal turned out to be abortive through no fault of the board. The latter did nothing to hamper him in the prosecution of his rights and indeed provided his alter ego all the materials which would enable him question its decision.

Yet the respondent invokes against the board, the discretionary power of the court to quash its decision on the technical and highly legalistic ground that it failed in its statutory duty inasmuch as it did not hand to his person its findings and decision. The balance of justice is entirely in favour of the board. The respondent is, in the circumstances of this case, standing on the barest technicality and is, in my judgment, undeserving of the court’s discretion. The truth of the matter, as it seems to me, is

[p.338] of [1973] 2 GLR 323 that the respondent was only attempting to cure the error he made in appealing to the wrong court by the discretionary remedy of certiorari. He ought not to be allowed to get away with this manoeuvre. Indeed in Giusti Patents and Engineering Works, Ltd. v. Maggs [1923] 1 Ch. 515 it was held that a plaintiff who voluntarily sued in a county court which owing to the defence there raised had no jurisdiction, is not entitled to remove the proceedings to the High Court by certiorari. The instant case seems to me an a fortiori.

For the reasons which I have given, I think the learned judge should have discharged the order nisi. He was, in my opinion, wrong in making it absolute. Accordingly, I think the judge arrived at the wrong conclusion and I concur therefore in the result reached by the Chief Justice and in the order he has proposed.

JUDGMENT OF ARCHER J.A.

I have had the opportunity of reading the opinions just read by my learned brothers and I only wish to add a few words. The facts have been fully dealt with and I need not mention them again. The main point I wish to deal with is what type of service is contemplated by section 19 (1) of the Medical and Dental Act of 1959 (No. 36 of 1959)? Section 19 (1) of the Act reads:

“If in pursuance of paragraph (c) of subsection (5) of section 17 of this Act the Board in view of the nature of their findings decide to order the Registrar to remove the name of the practitioner from the register, or to make any order as to costs in relation to the proceedings, the Board shall cause a copy of the findings and decision to be served upon the practitioner who, within twenty-one days after such service, may appeal to the High Court against such findings and decision.”

The relevant expression which is the subject-matter of this appeal is: “the Board shall cause a copy of the findings and decision to be served upon the practitioner.” It is clear that the section does not stipulate how the service is to be effected and the question is what is the proper interpretation or construction to be placed on the sentence. First of all, how is the practitioner brought before the board for a disciplinary inquiry? Section 16 (2) of the 1959 Act provided: “The Board, if satisfied that a prima facie case for inquiry into the allegation has been established, shall notify the practitioner accordingly, and shall proceed to inquire into the allegation.”

The section did not say how the practitioner should be notified. But when nine years later the Medical and Dental Board (Disciplinary Enquiry Procedure) Rules, 1968 (E.I. 91), were promulgated, rule 4 (4) provided as follows:

“A Notice of Enquiry shall be delivered to the practitioner or sent to him by registered mail to his address on the register so however that the Board may in lieu thereof or in addition thereto cause the notice to be delivered or sent to such other address of the practitioner as the Board may think fit.”

[p.339] of [1973] 2 GLR 323

In the above-mentioned rule, there is no indication that the legislature was insisting on personal service because there are no express words to that effect. But the legislature intended either that the notice of inquiry should be delivered to the practitioner or should be sent by registered post to either the address appearing on the register or to any other address of the practitioner as the board considers adequate and effective. When one considers section 19 (1), the words used there are “The Board shall cause a copy of the findings and decision to be served upon the practitioner.” The section does not say that the board shall notify the practitioner of its findings and decision. Instead, the section provides that certain documents are to be served on the practitioner. Is there any difference between the word “deliver” and the word “serve”? I think there is none. Unfortunately, when the 1968 rules were introduced there were no rules as to how the findings and decision were to be served in accordance with section 19 (1). Perhaps, it was thought redundant to make such a provision because if a practitioner could be notified of an inquiry into his professional conduct through specified statutory means, he could also be notified of the findings and decision of the board in the same manner. Nevertheless, I think the use of the word, “serve” in section 19 (1) is deliberate because the section itself does not say that the findings and the decision could be sent by registered post. I shall therefore refrain from venturing to suggest that the statutory mode of delivering notices of inquiry under section 17 (1) as provided for in E.I. 91 also applies to service of the findings and decision under section 19 (1). In other words, my view is that rule 4 (4) of E.I. 91 does not apply to service of documents under section 19 (1).

What then constitutes good service under section 19 (1)?

As far back as 1850, Lord Campbell C.J. in R. v. Deputies of the Freemen of Leicester (1850) 15 Q.B. 671 enunciated the following principle at p. 675: “In general, when personal service is required by an act, it is so said in express words.” This principle has not undergone any process of attrition or extinction and it is still good law. It follows that, as section 19 (1) has not expressly stated that the respondent should be served personally, it is untenable to suggest that the section should be construed as if personal service was absolutely essential.

Secondly, section 13 (1) of our Interpretation Act, 1960 (C.A.4), provides as follows:

“Where an enactment authorizes or requires a document to be served on any person without directing it to be served in a particular manner the service of the document may be effected either— (a) by personal service, or (b) by post in accordance with subsection (2) of this section, or (c) by leaving it for him with some person apparently over the age of sixteen at his usual or last known place of abode or business.”

[p.340] of [1973] 2 GLR 323

Sub-paragraphs (d) and (e) relate to corporate bodies, unincorporated bodies and owners and occupiers of premises and I need not quote these provisions. But subsection (2) reads:

“Where an enactment authorizes or requires a document to be served by post, whether the word ‘serve’ or some other word is used, service may be effected by prepaying, registering and posting an envelope containing the document, addressed to the person on whom the document is to be served at his last known postal address; and, unless the contrary is proved, the document shall be deemed to have been served at the time at which the envelope would have been delivered in the ordinary course of post.”

As I have already pointed out section 19 (1) does not state that a copy of the findings and decision should be served by post and therefore section 13 (2) of the Interpretation Act does not apply. After this process of elimination, only section 13 (1) (a) and (b) apply. It seems to me therefore that in view of the provisions of the Interpretation Act, the service on the respondent contemplated by section 19 (1) of the Medical and Dental Act, 1959, is either personal service or service by leaving it with some person apparently over the age of sixteen years at the usual or last known place of abode or business of the respondent. “Some person” in my view does not mean any person but a person who can properly be regarded as having authority to receive documents on behalf of the respondent, or some person who from his relation or position may be presumed to have such authority. In my view as section 13 (1) of the Interpretation Act provides that service may be effected in one of the ways mentioned, it would have been perfectly in order for the board to have served the respondent personally or by leaving the documents with his wife, cook, steward or any one in his household. The documents could also properly have been left at his clinic with one of his assistants there, that is, a nurse, pharmacist or labourer; although I doubt whether any of the patients at the clinic would be competent to receive the documents on his behalf.

Nevertheless, in the present appeal, the documents were not personally served or left at his residence or business as provided by section 13 of the Interpretation Act and the question now is whether the despatch of the findings and decision to Dr. Seth Twum constituted good service. I do not think that the methods laid down in section 13 of the Interpretation Act exclude service on a lawyer who requests that the documents should be sent to him on behalf of his client. The usual methods of tracing and finding persons to be served are those stated in C.A. 4. I am not aware of how the board serves documents under section 19 (1) and I do not want, for one moment, to imagine what the board would have done if Dr. Seth Twum had not written his letter. It seems to me therefore that every aspect of this case depends on the proper categorization of Dr. Seth Twum’s letter. Did he write his letter as a lawyer who had ceased to be his client’s representative or did he write on behalf of his client? I think

[p.341] of [1973] 2 GLR 323 an affirmative answer to the former would be very strange indeed in view of the contents of the letter. When a lawyer writes a letter and starts with the expression “I refer to your letter … informing my client” and “I understand from my client that he has written to you,” is the lawyer writing on his own behalf in the matter relating to himself or is he writing on behalf of his client whose interest he has undertaken to handle? There is only one interpretation which can be placed on Dr. Seth Twum’s letter. He wrote on behalf of the respondent and requested the board to send him a copy of the findings and decision of the board “as soon as practicable after it has been delivered.” The respondent was travelling at the time of the delivery of the ruling and no doubt his legal representative was under an obligation while he was away to watch his interests so far as the disciplinary inquiry was concerned. The respondent has not said either in the court below or in this court that he never gave Dr. Seth Twum instructions to write that letter. It seems to me therefore that the respondent was properly served through Dr. Seth Twum. In support of this feeling I wish to refer to the very recent case of R. v. Chief Immigration Officer Manchester Airport; Ex parte Insah Begum [1973] 1 W.L.R. 141, C.A. It is an English case but it appears to be almost on all fours with the present appeal so far as service is concerned. Paragraph 2 (1) of Schedule 1 to the Commonwealth Immigrants Act, 1962 (10 & 11 Eliz. 2, c. 21) provides:

“The power of an immigration officer . . . to refuse admission into the United Kingdom . . . shall be exercised by notice in writing; and . . . any such notice shall be given by being delivered by the immigration officer to the person to whom it relates.”

A Pakistani lady on arrival at the Airport was refused admission by the immigration officer who delivered the statutory notice of refusal to a solicitor’s clerk who had called at the immigration office and whose principal had been acting as the lady’s solicitor. In fact, the solicitor’s clerk requested that the notice of refusal should be delivered to him as he was representing the lady. It was. Subsequently, the lady applied to the Divisional Court for an order of certiorari to quash the decision of refusal on the ground that the notice was not delivered to herself but to the solicitor’s clerk. The Divisional Court dismissed the application and she appealed to the Court of Appeal, where Lord Denning M.R. dismissed the appeal in the following words at p. 143:

“The argument was based on the words ‘to the person to whom it relates.’ It is said that the notice ought to have been given to the woman herself and not to the solicitor’s clerk. I do not agree. I think the notice is sufficient to comply with the Act if it is given to the person herself or to her agent, in this sense, that he is authorized to receive it on her behalf or may from his position be presumed to have such authority. Thus, when husband and wife are living together, the wife may be presumed to have authority to receive service of a document for her husband . . . Similarly in Burt v. Kirkcaldy [1965] 1 W.L.R. 474, a police constable served a notice of intended

[p.342] of [1973] 2 GLR 323 prosecution on a husband by leaving it with the wife or at the house. It was held to be sufficient. Likewise I think a notice is sufficiently served if it is served on a person’s solicitor or on his solicitor’s clerk in such circumstances that he may be presumed to have authority to accept it.”

It seems to me, therefore, that if the court below had considered section 13 (1) of the Interpretation Act and had considered seriously the lawyer-client relationship between Dr. Seth Twum and the respondent, the court below would have refused the application for certiorari on the ground that service on Dr. Seth Twum was good service on the respondent as section 19 (1) of the Medical and Dental Act does not expressly state that a copy of the findings and decision should be served personally on the respondent, and in no other manner. I would therefore allow the appeal.

DECISION Appeal allowed.

S.O.