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EKU ALIAS CONDUA III v. ACQUAAH


  • New
  • 1961-05-29
  • HIGH COURT
  • GLR 285-291
  • Print

CHARLES, J.


Summary

Certiorari?-Application for enlargement of time in which to apply for certiorari?-Failure to object to jurisdiction timeously?-Supreme [High) Court (Civil Procedure) Rules, 1954, Orders 59, r. 3 and 64, r. 6.Courts?-Whether Appeal Commissioner is a judicial or a quasi-judicial officer?-Houses of Chiefs Act, 1958 (No. 20 of 1958) ss. 20-22, 27, and 29 as amended by the Houses of Chiefs (Amendment) Act, 1959 (No. 8 of 1959) s. 11.

Headnotes

The applicant instituted an action before the Shama State Council, which had jurisdiction over constitutional matters only, for a declaration that he was the headman of the Aboasi fishing community, and therefore the proper person to collect fishing tolls. After the hearing, the State Council dismissed the claim on the 3rd May, 1958. The applicant then appealed to the Appeal Commissioner. The appeal was dismissed on the 3rd March, 1961, on the ground that the matter was not one of a constitutional nature, and the Appeal Commissioner had no jurisdiction. The applicant thereupon filed the instant application for an enlargement of time in which to apply for an order of certiorari to quash the decision of the Shama State Council dated the 3rd May, 1958, and that of the Appeal Commissioner dated the 3rd March, 1961, on the ground that the matter not being a constitutional one, both tribunals had no jurisdiction.

Judgement

APPLICATION for enlargement of time in which to apply for certiorari and for leave to apply for certiorari.

This is an application by way of motion in which the plaintiff applicant applies for enlargement of time in which to apply for an order of certiorari and for leave to apply for an order of certiorari to quash:

(a) the proceedings and judgment of the Shama State Council dated the 19th April, 1958, and the 13th May, 1958 in a suit intituled "Kwesi Eku alias Chief Condua III Plaintiff versus Kojo Acquaah Defendant," and

(b) the decision of the Appeal Commissioner dated the 3rd of March, 1961 and/or for any further or other orders as to the Court may seem just.

The relevant grounds canvassed in support of the application for extension of time as contained in the affidavit of the applicant are as follows:

?"(5) That I brought an action in the High Court at Sekondi for the determination of the dispute aforesaid, but my action was struck out by Mr. Justice Acolatse on the ground that the matter was one for the Shama State Council to determine, and that therefore the High Court had no jurisdiction in the matter. I exhibit herewith a Copy of the Order of Mr. Acolatse marked KE. 2.

(6) That I was therefore compelled by the aforesaid Order to issue out a Writ from the Shama State Council against the said Kojo Acquaah in which I sought a declaration that I was the Headman of the Fishing Community of Aboasi and therefore the proper person to collect fishing tolls. [p.287]

(7) That the said action was heard by the Shama State Council on the 19th April, 1958 and judgment delivered on the 3rd May, 1958 by which my Claim was dismissed and Kojo Acquaah declared a Caretaker of Aboasi. I exhibit herewith a Copy of the said judgment marked KE. 3.

(8) That following the procedure laid down by the State Councils Ordinance for appeals from decisions of the State Council I lodged an appeal against the judgment of the State Council which was determined by the Appeal Commissioner on the 3rd March, 1961.

(9) That the Appeal Commissioner dismissed my appeal undoubtedly on the ground that the subject-matter was not one of a Constitutional nature, for before the appeal was actually dismissed I received a letter from the Government Agent at Sekondi in which he stated that the subject-matter of my appeal was not one of a constitutional nature. I exhibit a Copy of the said letter herewith marked KE.4.

(10) That the delay in applying for leave to apply for the Order of Certiorari to quash the decision of the Shama State Council is due to the fact that I appealed against that decision in the normal course of procedure."

This application for enlargement of time is made under rule 6 of Order 641 which empowers the court to enlarge or abridge the period having regard to the circumstances of each case. The six months rule as laid down in rule 3 of Order 59 of the Supreme [High] Court (Civil Procedure) Rules, 1954, is not a rule of limitation but a rule of practice and the court has power to entertain an application for certiorari even after the expiry of six months in proper cases. On the other hand the court has power to refuse an application on the ground of undue delay even though it is presented within the period of six months: see R. v. Glamorgan Appeal Tribunal2 The question of undue delay should be considered not with reference to the length of time but with reference to the circumstances of the case.

It is quite apparent that the applicant did not raise the question of jurisdiction either before the Shama State Council or the Appeal Commissioner, and there is no allegation that at the time when the matter was heard before the state council or the Appeal Commissioner the applicant had no knowledge of the facts constituting such absence of jurisdiction. The applicant was represented in the High Court by counsel and counsel having failed to exercise his right of appeal from the ruling of Acolatse, J. appeared to have agreed with that ruling. Moreover, the applicant was represented by counsel when the matter came on appeal from the Shama State Council to the Appeal Commissioner, and there is no allegation that there was an objection to the jurisdiction of the Shama State Council. The applicant appears to have contested the case before the Shama State Council and the Appeal Commissioner on its merits although he knew that he intended to contest the jurisdiction of the Shama State Council and thereby impugn its proceedings as appears in paragraph 10 of his affidavit. It has been held that where objection as to jurisdiction of the inferior court was not taken at the trial the superior court may, in the exercise of its discretion, refuse certiorari, unless it is shown that the applicant had no knowledge of the facts constituting such absence of jurisdiction. [p.288]

In R. v. Williams, ex p. Phillips3 a baker was charged under section 4 of the Bread Act, 1836, with selling bread otherwise than by weight, and was convicted in the presence of two justices. He obtained a rule nisi for a writ of certiorari to quash the conviction on the ground that one of the justices alleged to have taken part in the conviction was a person who was concerned in the business of a baker. The affidavit on which the rule nisi was obtained did not state that any objection to the competence of the court was taken at the hearing before the justices, nor did it state that at the date of that hearing the applicant was without knowledge of the facts alleged to disqualify one of the justices. Channel, J., in the course of his judgment said:

"In my view the writ is discretionary. A party may by his conduct preclude himself from claiming the writ ex debito justitiae, no matter whether the proceedings which he seeks to quash are void or voidable. If they are void it is true that no conduct of his will validate them; but such considerations do not affect the principles on which the Court acts in granting or refusing the writ of certiorari. This special remedy will not be granted ex debito justitiae to a person who fails to state in his evidence on moving for the rule nisi that at the time of the proceedings impugned he was unaware of the facts on which he relies to impugn them. By failing so to do a party grieved precludes himself from the right to have the writ ex debito justitiae and reduces his position to that of one of the public having no particular interest in the matter.?"4

In R. v. Pereira, ex p. Khotor Bawasab5 it was held that an application for certiorari to quash a conviction on the ground of lack of jurisdiction will be refused if the appellant had appealed against the order of jurisdiction which implies acceptance of jurisdiction. Counsel for the defendant has contended that the Appeal Commissioner did not decide the appeal from the Shama State Council but rather that it was the President who made the decision. It therefore behoves me to consider the relevant provisions in the Houses of Chiefs Act, 1958,6 governing appeals from a state council.

Section 20 provides:

?"(1) The Judicial Service Commission may appoint fit and proper persons to be Appeal Commissioners for the purposes of this Part of this Act.

(2) An Appeal Commissioner appointed under any other Act to hear and determine appeals on matters of a constitutional nature affecting any Chief may, with the consent of the Judicial Service Commission, continue in office, and shall be deemed to have been appointed under this section."

Section 21 provides:

"(1) Every appeal from a determination of a matter of a constitutional nature affecting any Chief shall be in the prescribed form and be lodged in duplicate with the appropriate House of Chiefs or the Head of the Region as the case may require. The appeal shall be lodged within two months of the determination or within such extended time as the Minister for good cause shown may allow. One copy of the appeal shall be retained by House of Chiefs or the Head of the Region as the case may be and the other copy shall within three days of receipt be forwarded by the appropriate authority to an Appeal Commissioner. [p.289]

(2) An appeal when lodged under the provisions of subsection (1) of this section shall, subject to any order of the Appeal Commissioner as to security for costs or otherwise and until disposed of under this Act, operate as a stay of execution of the determination. For the purposes of this subsection the Appeal Commissioner shall have power to require security for costs to be given by the appellant and to make any order necessary for the protection or preservation of any property or the revenue of any property affected by the appeal. A duplicate of the order may be lodged without fee in any Court other than a native court, and when lodged shall be enforceable as an order of the Court.

(3) Notice of intention to appeal may at any time before the appeal is lodged as required by this section, be filed on behalf of the appellant direct with an Appeal Commissioner together with a deposit of five pounds as security for prosecution of the appeal. The Appeal Commissioner, where he is satisfied, may make an interim order directing a stay of execution; and when filed with the authority making the determination, the interim order shall have effect according to its tenor."

Section 22 provides:

"(1) Any appeal under this Part of this Act when received by an Appeal Commissioner may be heard and determined by the Appeal Commissioner sitting alone, or as he thinks fit, with assessors. Proceedings may be continued before an Appeal Commissioner other than an Appeal Commissioner before whom they were commenced.

(2) An Appeal Commissioner may call upon any person to advise him on local laws and custom; and may act on any testimony, sworn or unsworn, and may receive as evidence any statement, document, information, or matter which in the opinion of the Appeal Commissioner may assist him to deal effectually with the appeal before him whether the same would, apart from this subsection, be legally admissible evidence or not.

(3) For the purposes of compelling the attendance of parties and witnesses and the production of documents an Appeal Commissioner shall have the powers of a Magistrate's Court in the exercise of its civil jurisdiction."

Section 27 provides:

"(1) A decision of an Appeal Commissioner shall, as the case may require, be delivered to the House of Chiefs or Head of the Region by whom it was referred under the provisions of section 21 of this Act. The House of Chiefs or Head of the Region may refer the decision back to the Appeal Commissioner for clarification.

(2) Subject to the provisions of subsection (1) of this section, the decision of an Appeal Commissioner shall be final."

Section 29 provides:

"(1) Every decision of an Appeal Commissioner shall when final be forwarded by the Head of the Region or the appropriate House of Chiefs as the case may be to the Minister within one month of the decision of the Appeal Commissioner, and the Minister shall publish the decision in the Gazette.

(2) The publication of the decision under subsection (1) of this section shall, where it concerns any person ceasing to be a chief, be deemed to be a notice published under the provisions of section 3 of the Statute Law (Amendment) (No. 2) Act, 1957, and the provisions of that Act shall have effect accordingly."

It is quite clear that according to the provisions of sections 21, 22, 27 and 29 of the Act the Appeal Commissioner exercised judicial functions in deciding appeals from the state council. However, the Houses of Chiefs (Amendment) Act of 19597 amended section 27 of the Houses of Chiefs Act by deleting it and substituting the following section which reads as follows: [p.290]

?"(1) The findings of an Appeal Commissioner On any appeal under this or the next succeeding section of this Act shall be embodied in a report and be delivered by the Appeal Commissioner to the Minister who shall refer the report to the Governor-General. The Governor-General may confirm, vary or refuse to confirm the findings in the report, and a copy of the decision of the Governor-General shall be sent to the appropriate House of Chief or to the President as the case may require. In addition to the powers conferred by this subsection, the Governor-General may in his discretion remit the case on appeal to the Appeal Commissioner, or where for any reason the Appeal Commissioner is not available then to any other Appeal Commissioner for further consideration and the taking of such other evidence as the Governor-General may direct.

(2) Where the Governor-General is satisfied, a notice of the decision shall as directed by the Minister, be published with the findings in the Gazette and when published, shall be final and conclusive.

(3) Notwithstanding the provisions of section 88 of the Ghana (Constitution) Order in Council, 1957, (which provides that in particular cases the decision of an Appeal Commissioner shall be final before publication in the Gazette), if a decision given thereunder is not at the date of the coming into operation of the Houses of Chiefs (Amendment) Acts, 1959, published in the Gazette, the decision shall be of deemed to be a finding of the Appeal Commissioner and the provisions subsections (1) and (2) of this section shall apply.?"

This new section does not refer to the decision of the Appeal Commissioner but rather to the findings of an Appeal commissioner which are to be embodied in a report to be submitted to the President who may confirm, vary or refuse to confirm the findings in the report and a copy of the decision of the President shall be sent to the appropriate House of Chiefs or the President of the House of Chiefs as the case may require. In addition, the President may in his discretion remit the case on appeal to the Appeal Commissioner for further consideration and the taking of such other evidence as the President may direct. This unequivocally indicates that the findings of an Appeal Commissioner are not an order determining the appeal but rather a report on which the President bases his decision. I am of the opinion that section 22(1) of the Act is in conflict with the substituted section 27 because section 22(1) purports to empower the Appeal Commissioner to hear and determine an appeal which in effect is to decide the appeal. In Wood v. Riley8 it was held that if two sections of an Act are repugnant the known rule is that the last must prevail. Moreover, the provisions of subsection (3) of the substituted section 27 make it clear that as from the date of the coming into operation of the Houses of Chiefs (Amendment) Act, 1959, if a decision of an Appeal Commissioner is not published in the Gazette such decision shall be deemed to be a finding of an Appeal Commissioner and the provisions of subsections (1) and (2) of the substituted section 27 shall apply. The purpose of this subsection (3) is to give what was formerly a decision of an Appeal Commissioner the effect of a finding to be embodied in a report. The main purpose of the amendment to section 27 of the Houses of Chiefs Act, 1958 , was to divest an Appeal Commissioner of the power of deciding appeals and to vest such power in the Governor-General, whose powers are now exercised by the President.

The Houses of Chiefs (Amendment) Act, 1959, also amended section 29 of the Houses of Chiefs Act, 1958, by (a) repealing subsection (1), [p.291]

(b) omitting the figure and symbols "(2)" as reference to the next succeeding subsection, and (c) by substituting for the words "under subsection (1) of this section" the words?" of the Governor-General on an appeal under this Act." This amendment also makes it clear that the decision rests with the President who now exercises the powers of the Governor-General.

It is clear that in order to come within the category of a judicial or quasi-judicial, tribunal or authority to whom certiorari may issue, the authority must have the power to determine questions affecting rights of parties; see R. v. Metropolitan Police Commissioner, ex p. Parker.9 Unless there is an order or determination by the body, certiorari will not lie. In R. v. Statutory Visitors etc., ex p. Pritchard10 under section 11 (4) (a) of the Mental Deficiency Act, 191311 the visitors under the Act examined the infant and submitted a special report to the Board of Control, recommending that the detention order should be extended. Certiorari to quash the report of the visitors was refused on the ground that under section 11(2) of the Act, it was for the Board of Control and not the visitors to decide whether the continuance of the detention order was necessary in the interests of the infant and to make an order for that purpose. The visitors had no power to come to a decision and did not constitute a tribunal. The report was simply a recommendation and contained the evidence to enable the Board to come to a decision.

These circumstances are similar to those in the present application and I hold that the Appeal Commissioner is not called upon to decide the appeal from the Shama State Council, but he submits a report with his recommendations which the President can accept or reject as he sees fit in deciding the appeal. It therefore seems that as the applicant has not applied for the decision made by the President to be quashed, this decision of the President would still be effective even though the decision of the State Council may be quashed by order of certiorari and the court would be acting in vain. For these reasons I dismiss both applications and order the applicant to pay costs fixed at fifteen guineas.

Decision

<P>Application dismissed.</P>

Plaintiff / Appellant

E. Akufo-Addo

Defendant / Respondent

E. B. Gaisie

Referals

(1) R. v. Glamorgan Appeal Commissioners, ex p. Fricker (1917) 115 L.T. 930

(2) R. v. Williams, ex p. Phillips [1914] 1 K.B.608

(3) R. v. Pereira, ex p. Khotor Bawasab [1949] W.N.96

(4) Wood v. Riley (1867) L.R. 3 C.P.26

(5) R. v. Metropolitan Police Commissioner, ex p. Parker [1953] 2 All E.R.717

(6) R. v. Statutory Visitors etc., ex p.  Pritchard [1953] 2 All E.R 766

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