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AKRASHI II v. OFORI ATTA


  • appeal
  • 1961-06-29
  • HIGH COURT
  • GLR 434-440
  • Print

OLLENNU J.


Summary

Practice?-Procedure by originating summons?-Whether an applicant need have a cause of action?-Supreme [High] Court (Civil Procedure) Rules 1954, Order 54A, 2.

Headnotes

The plaintiff Nii Kofi Akrashi II was until the 12th February, 1957, the Mantse of James Town, Accra, and occupied the James Town Mantse We. On the said 12th February, he was declared destooled. He disputed his destoolment and took steps to contest its constitutionality. Meanwhile he continued to occupy the Mantse We. On the 31st May, he was ejected from the Mantse We in execution of an order, the James Town Stool Property (No. 2) Order 1958 (L.N. 178) made under the Statute Law (Amendment) (No. 2) Act 1957. The other plaintiffs who were living with him in the Mantse We were also ejected from the Mantse We. In connection with that process he, the first plaintiff was arrested and charged before the district magistrate's court with a criminal offence. The case was subsequently transferred to the High Court, but it was discontinued when, on the 31st May, 1958 in another action instituted by Nii Kojo Ashamanfro II, the then Acting Mantse of James Town stool, the Statute Law (Amendment) (No. 2) Act 1957, and the orders made thereunder were declared invalid. Following upon that declaration Parliament passed the Stool Property (Recovery and Validation) Act, No. 31 of 1959, to validate all acts purported to have been done under the Act of 1958 and orders made thereunder, and empowered the Minister to entertain claims and offer compensation for any such acts. The first plaintiff availing himself of the provisions of section 8 subsection (2) of the Act of 1959 petitioned the Minister on behalf of himself and the other plaintiffs for compensation for injuries occasioned to them by the enforcement of the orders made under the Act of 1958, i.e. their ejectment, [p.435] and his arrest and arraignment before the court on a criminal charge. The Minister replied that he "was unable to accept the claim."The plaintiffs instituted the present action in 1961, by originating summons for a declaration that they are entitled to make a claim to the Minister under section 8(2) of the Stool Property (Recovery and Validation) Act, 1959, and that the Minister is under a duty to entertain the claim and offer some compensation. A. E. A. Ofori Atta, Minister of Local Government, but at the time of the proceedings, Minister of Justice, was made the defendant.It was contended on behalf of the defendant that (a) in view of section 2 of the Public Officers (Protection) Ordinance, Cap. 27 (1951 Rev.), limiting to three months the time within which an action can be instituted against public officers, the action is statute barred; (b) proceedings by originating summons are an action within Order 1, rule 1 of the Supreme [High] Court (Civil Procedure) Rules 1954, and the plaintiffs are precluded by the express words of section 8(1) of the 1959 Act from prosecuting their case. The said section 8(1) provided inter alia that "no action, suit or proceedings ..... shall be brought against the state or any person . . ."; and (c) that in any case the opening words of section 8(2) of the 1959 Act which read "It shall be lawful" merely conferred a discretion on the Minister to accept or reject a claim for compensation. He was under no obligation to entertain the claim or to offer compensation.

Judgement

Application by originating summons for a declaration of rights under section 8(2) of the Stool Property (Recovery and Validation) Act, 1959. [p.436]

The first plaintiff Nii Kofi Aktashi II was until the 12th February, 1957, the Mantse of James Town, Accra, and occupied the James Town Mantse We. On the said 12th February, he was declared destooled. He disputed his destoolment and took steps to contest its constitutionality. Meanwhile he continued to occupy the Mantse We.

On the 31st May, he was ejected from the Mantse We in execution of an order, the James Town Stool Property (No. 2) Order 19581 made under the Statute Law (Amendment) (No. 2) Act, 19572 The other plaintiffs who were living with him in the Mantse We were also ejected from the Mantse We. In connection with that process he, the first plaintiff was arrested and charged before the district magistrate's court with a criminal offence. The case was subsequently transferred to the High Court.

At the date of the ejectment of the plaintiffs, there was pending in the then Supreme Court, a suit instituted by one Nii Kojo Ashamanfro II Dsasetse of James Town stool and Acting Mantse of James Town for a declaration that the Statute Law (Amendment) (No. 2) Act, 1957, and the orders made thereunder are invalid. The said suit was determined on the 31st May, 1958 in favour of the plaintiff therein, and the said Act and the consequential orders were declared null and void. In view of the said judgment of the Supreme Court, the criminal prosecution which was then pending in the High Court was discontinued.

As a sequel to the judgment declaring the Statute Law (Amendment) (No. 2) Act, 1957, invalid, Parliament passed the Stool Property (Recovery and Validation) Act, 19593 which among other things validated all acts purported to have been done under the said Act, or under any order made thereunder and empowered the Minister to entertain claims and offer compensation for any acts purported to have been done under the Act or in the attempted enforcement of any order thereunder.

The first plaintiff availing himself of the provisions of section 8, subsection (2) of the Act of 1959 petitioned the Minister on behalf of himself and the other plaintiffs for compensation for injuries occasioned to them by the enforcement of the said order, that is their ejectment, and his arrest and arraignment before the court on a criminal charge. In reply to his said petition the first plaintiff received a letter from the Permanent Secretary of the Ministry to say that "the Minister was unable to accept the claim." In consequence of that reply the plaintiffs instituted these proceedings under Order 54A of the Supreme [High] Court (Civil Procedure) Rules, 1954, praying for the three declarations set out in the originating summons. Order 54A, rule 2 provides as follows:

"Any person claiming any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question [p.437] of construction of a statute, may apply by originating summons for the determination of such question of construction, and for a declaration as to the right claimed."

Since the plaintiffs claim that section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959, gives them right to make a claim for compensation for any act purported to have been done under the Statute Law (Amendment) (No. 2) Act, 1957, and since a decision on the question of the said entitlement to make a claim depends upon the construction of the said section 8, subsection (2), they are in my opinion persons who may take out an originating summons calling for the interpretation of the said section 8, for purposes of ultimate determination of the question whether or not they are entitled to make a claim, and the further question of whether or not a claim made by them should be entertained by the Minister. Section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959 reads as follows:

"It shall be lawful for the Minister to entertain claims and offer compensation for any act purported to have been done before the 10th day of April, 1959 under the Act of 1957 or in the attempted enforcement of any Order under the Act of 1957; and where an offer is accepted it may be paid out of the Consolidated Fund".

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

It was submitted on behalf of the defendant that the suit is statute barred by virtue of section 2 of the Public Officers (Protection) Ordinance4 because in so far as it is based on either the ejectment of the plaintiffs from the Mantse We or on the Minister's rejection of the plaintiffs' claim, it was not commenced within three months of either of those acts.

In opposition to that contention it was submitted on behalf of the plaintiffs that the wrong which is the cause of action is a continuing wrong and therefore time would not run against the plaintiffs.

I do not agree that the ejectment of the plaintiffs from the Mantse We or the rejection of the plaintiffs' claim by the Minister is a continuing wrong; each of them is a completed act. At the same time I do not agree that the claim is statute-barred, because in my opinion the originating summons is not based on any act done by the defendant. In my opinion the cause of action in an originating summons as shown in Order 54A, rules 1 and 2, need not be an act or omission of any person; all the cause of action necessary for the institution of an originating summons is the existence of either a claim of interest "under a deed, will, or other written instrument" or a claim of "any legal or equitable right in a case where the determination of the question whether he is entitled to the right depends upon a question of construction of a statute". An act or omission which might have led to the creation of the instrument or the passing [p.438] of the statute may be quite irrelevant for the determination of a suit in an originating summons. For that reason a plaintiff in an originating summons need not name any defendant, as provided by Order 54A, rule 3. It is for the court or a judge to direct such persons to be served with the summons as they or he may think fit. Therefore in this case, the court is not concerned with whether in fact the plaintiffs have suffered damage and injury as they allege, and if they have, the extent of that damage and injury. All that is necessary for the interpretation of the statute is sufficient facts which show that an act was done or purported to have been done under the Act or in the attempted enforcement of any order under the Act of 1957.

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

This submission would have been fatal to the case of the plaintiffs had the suit been a claim for damages for injury suffered in consequence of any such act. But the plaintiffs have sued for damages for acts which, but for the Act of 1959 would have been illegal and tortious. Moreover as earlier pointed out, this suit, commenced by an originating summons in pursuance of Order 54A, rule 2, is brought upon a claim by the plaintiffs that upon proper interpretation of section 8, subsection (2) of the Stool Property (Recovery and Validation) Act, 1959, they are persons entitled to certain legal rights, i.e. a right to make a claim to the Minister, coupled with a duty upon the Minister upon the presentation of the claim, to entertain the said claim and to make them an offer. Since no act done under the Statute Law (Amendment) (No. 2) Act, 1957, is relied upon as the cause of the action in this suit, the prohibition in section 8, subsection (1) of the 1959 Act cannot apply to this case, and I hold that the suit is properly before the court.

Next counsel for the defendant submitted that the phrase, "It shall be lawful for the Minister to entertain claims and offer compensation" the opening words of section 8, subsection (2), should be interpreted merely as enabling and permissive, and not obligatory. In support of that contention counsel referred the court to Maxwell on Interpretation of Statutes (10th edition) pages 244 and 247, and to the case of Julius v. Oxford (Bishop)5 and other cases cited in Maxwell. Counsel laid emphasis on the views expressed by Lord Cairn in Julius v. Oxford (Bishop) that such words as "it shall be lawful" are always simply permissive or enabling, that they confer a power and do not of themselves do more.

Counsel for the plaintiffs also referred to the same book, Maxwell on Interpretation of Statutes. He used the 9th edition, but the passages at the pages he referred the court to correspond word for word with the passages at pages 239 to 240 and 244 to 247 of the 10th edition; the pages [p.439] 244 to 247 are the very pages of that book to which counsel for the defendant referred. But he, counsel for the plaintiff, stressed the views expressed by Lord Blackburn in the Oxford (Bishop) case at page 241, as the principle by which the court should be guided, namely that the words, "it shall be lawful" are enabling words which give a power which prima facie might be exercised or not, but that if the object for which the power is conferred is for the purpose of enforcing a right, whether public or private, there may be a duty cast upon the donee to exercise it for the benefit of those who have that right when required on their behalf, and that where there is such a duty, it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it.

Having given careful consideration to passages in Maxwell relied upon by either party, and the different views expressed by the noble Lords in the Oxford (Bishop) case cited to me, I have come to the conclusion that the authorities show that there are cases in which the words "it shall be lawful" must be held to be enabling or permissive only, and there are cases in which they must be held to confer a power which must be exercised, and therefore are obligatory. Maxwell summed the situation up at page 247, in the words of Lord Penzance quoted from the Oxford (Bishop) case as follows:

"The effect of the cases in which the exercise of the power conferred was held to be obligatory was that, though the statutes concerned had in terms only conferred a power, the circumstances were such as to create a duty and to show that the exercise of any discretion by the person empowered could not have been intended."6

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

The Act of 1959 was passed because the Statute Law (Amendment) (No. 2) Act, 1957, had been declared by a court of competent jurisdiction to be invalid. Before the said Act was declared null and void, certain acts had been done and some proceedings taken in pursuance of it and in execution of an order made thereunder. All those acts and proceedings were consequently illegal. Those illegal acts and proceedings violated the rights of the citizens as to the freedom of their property and person. In so far as the violation is trespass to the person or property it gave the plaintiffs a cause of action without the necessity of actual damage, and in so far as it is a wrong which caused actual damage it constituted a good cause of action. Therefore by those acts, the subjects of the state affected acquired a vested right to go to court and be awarded damages, the quantum of which would be in the discretion of the court. But by the validation Act, Parliament took away those vested rights of the subjects to prosecute their case before a court of law and to have damages awarded [p.440] them by the court. In substitution for the right so taken away, to go to court and be awarded damages, Parliament provided the subject with a simple and a summary method of obtaining redress. The position then is that but for the Act, the courts would have been obliged to entertain an action instituted by any one who feels himself injured or damnified by the acts done under or in pursuance of the Act. Consequently the only object the Act could have is to substitute the Minister for the courts.

It necessarily follows that the powers given to the Minister by the Act are powers which he is bound to exercise in the same way, though not in the same manner or by the same process as a court would have been bound to exercise its powers. And since a court cannot refuse, but must entertain a claim brought before it, so too the Minister must entertain a claim made by a person who has been affected in his person or property by an act or process taken under the 1957 Act or upon an order made thereunder. And further he must upon such entertainment offer some compensation as in his discretion is warranted by the act or process which would otherwise have been trespass. I therefore declare that in this Act, the words, "It shall be lawful" are not merely enabling and permissive; they are obligatory. They confer jurisdiction on the Minister to entertain claims made by, and to offer compensation to, persons who have actually suffered injury by the enforcement or attempted enforcement of the Act of 1957 or of any order made thereunder.

As to the second declaration sought it appears to me from exhibit A that the Minister did exercise the power and jurisdiction conferred upon him by section 8(2) and did entertain the claim made by the plaintiff.

The third declaration sought is not within the scope of the court's jurisdiction under the originating summons; it is accordingly struck out.

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

Decision

<P>Judgment for plaintiffs.</P>

Plaintiff / Appellant

Dr. J. B. Danquah

Defendant / Respondent

A. N. E. Amissah

Referals

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

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