Tawiah and others v. Brako and others (1 GLR 483-489) [1973] GHACA 1 (27 February 1973);
TAWIAH AND OTHERS v. BRAKO AND OTHERS [1973] 1 GLR 483-489
COURT OF APPEAL
27 FEBRUARY 1973
JIAGGE, SOWAH AND KINGSLEY-NYINAH JJ.A.
Practice and procedure—Judgment—Interlocutory or final—Application to set aside fi.fa. refused—Appeal against dismissal of application—Objection that dismissal of application was an interlocutory decision and that failure to obtain leave to appeal was fatal upheld by High Court—Further appeal to Court of Appeal against ruling of High Court—whether refusal to set aside writ of fi. fa. an interlocutory or final decision.
Administrative law—Judicial tribunals—Chieftaincy committee—Findings of—Neither confirmed nor varied by the minister in accordance with statutory provisions— Unconfirmed findings of committee published in Local Government Bulletin—Whether rights accrued to parties on date of publication of findings so as to give a right of action —Chieftaincy Act, 1961 (Act 81), s. 39 (2), (3) and (5)—Constitution, 1969, Sched. I (Transitional Provisions), s. 10.
HEADNOTES
It is provided by section 39 (2), (3) and (5) of the Chieftaincy Act, 1961 (Act 81), that:
“(2) If it appears to the Minister that the findings in the report are correct he shall confirm the report.
(3) If it appears to the Minister that the findings are substantially correct, but require to be varied in certain respects he shall confirm the findings as so varied.”
“(5) Where the Minister confirms or amends the findings of a Judicial Committee, a notice of the findings as confirmed or amended ––
(a) shall be published in the Local Government Bulletin and when so published shall be conclusive; and
(b) shall be sent to the appropriate House of Chiefs.”
Under Act 81, s.40, the Chieftaincy Committee exercised original jurisdiction in matters affecting chieftaincy to which a paramount chief was a party. That committee made a finding in September 1967 in favour of the respondents and awarded them costs. The finding was neither confirmed nor varied by the minister in accordance with Act 81, s. 39 and in 1969 section 40 of Act 81 was repealed by the Constitutional (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), para. 19, Sched. II, and the Constitution, 1969, contained new provisions affecting chieftaincy. Under the Constitution, Sched. I, s. 10, however, the minister still had the power to confirm or vary the committee’s findings as a matter pending before the commencement of the Constitution. He did not do so. In March 1970 the findings of the committee were published in the local Government Bulletin, and contrary to normal practice there was no indication that there had been a prior confirmation or amendment as directed by Act 81, s. 39 (2), (3) and (5). A letter from the Prime Minister’s office to the parties in 1971 stated that in view of the coming into force of the Constitution the government was “unable to accept or reject the recommendations of the Committee.”
[p.484]
In an attempt to recover the costs awarded, the respondents obtained a writ of fi. fa. in the district court. The appellants applied to have the writ set aside on the ground that the mere publication of the committee's findings in the Bulletin gave the respondents no right of action. Their application was dismissed and they appealed to the High Court, where they were met with a preliminary objection that the refusal of the district court to set aside the writ of fi. fa. was an interlocutory decision necessitating leave to appeal. The objection was upheld. They further appealed to the Court of Appeal.
Held, allowing the appeal:
(1) an interlocutory decision did not assume finally to dispose of the rights of the parties. It was an order in procedure to preserve matters in statu quo until the rights of the parties could be determined. The order of the district court dismissing the application to set aside the writ of fi. fa. was not interlocutory because it finally disposed of the rights of the parties and completely determined the action. It was a final order and no leave to appeal was necessary. Dicta of Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at pp. 548-549, C.A. and of Cotton L.J. in Gilbert v. Endean (1878) 9 Ch.D. 259 at pp. 268-269, C.A. applied.
(2) Without confirmation of the findings of the committee by the minister as directed under the provisions of section 39 of Act 81, no rights whatever accrued to the parties by the mere publication of such findings in the Local Government Bulletin, No. 12. Even though the minister had power to confirm or amend pending matters following the coming into force of the Constitution, 1969, he had not done so with regard to the findings of the committee in the instant case and the respondents therefore had no right of action. Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1972] 1 G.L.R. 60, C.A. distinguished.
CASES REFERRED TO
(1) Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547; 72 L.J.K.B. 271; 67 J.P. 397; 19 T.L.R. 266; 47 S.J. 316, C.A.
(2) Gilbert v. Endean (1878) 9 Ch.D. 259; 39 L.T. 404; 27 W.R. 252,C.A.
(3) Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong Kwame [1972] 1 G.L.R. 60, C.A.
NATURE OF PROCEEDINGS
APPEAL against the ruling of the high Court that the dismissal of an application to the district court for an order setting aside a writ of fi. fa. was an interlocutory order. The facts are fully set out in the judgment.
COUNSEL
Jonathan Arthur for the appellants.
Fleischer for the respondents.
JUDGMENT OF JIAGGE J.A.
Jiagge J.A. delivered the judgment of the court. This appeal is from the ruling of the High Court, Koforidua, upholding a preliminary objection that the refusal of the district court to set aside a writ of fieri facias was an interlocutory decision and that failure to obtain leave to appeal was fatal and not a curable irregularity.
The respondents on an application under section 37 (3) of the Chieftaincy Act, 1961 (Act 81), obtained a writ of fieri facias against [p.485] the appellants for the recovery of costs in the sum of N¢210.00 awarded by the Chieftaincy Committee in their favour. The Kwahu Traditional Council gave judgment against the respondents (who were defendants in a constitutional case before that court) on 27 July 1967 and found in favour of the appellants (who were plaintiffs). The respondents herein appealed against the decision and the Chieftaincy Committee allowed the appeal and ordered a new trial. The Chieftaincy Committee, presided over by Siriboe J. (as he then was) heard the case de novo and on 28 September 1967, delivered judgment dismissing the claim and awarding costs fixed at N¢210.00 against the appellants herein.
In an attempt to enforce the execution of the order for costs awarded in their favour, the respondents applied and obtained a writ of fieri facias from the Nkawkaw District Court, Grade II. The appellants applied to the same court to have the writ set aside on grounds that will be considered later in this judgment. The application was dismissed by the district court and on appeal to the High Court, the preliminary objection aforementioned was upheld. The application for costs made by the respondents in the district court was in accordance with section 37 (3) of the Chieftaincy Act, 1961 (Act 81), which provided that:
“For the purposes of the recovery of costs, a certificate of the Committee setting forth the particulars may be filed without payment of any fee with any court other than a Local Court, and when so filed shall be accepted by the court as sufficient evidence of the facts so certified; and costs imposed under this section shall be deemed to have been imposed by that court and be liable to taxation accordingly.”
The substance of this provision which is the recovery of costs, was the dispute between the parties before the Nkawkaw District Court Grade II, and the only issue to be decided by that court. When the court made an order dismissing the application to set aside the writ of fieri facias, it disposed of the substance in dispute and so determined the action.
The true test whether the court's decision was interlocutory or final is in our opinion set out by Lord Alverstone C.J. in Bozson v. Altrincham Urban District Council [1903] 1 K.B. 547 at pp. 548-549, C.A. when he said:
“It seems to me that the real test for determining this question ought to be: Does the judgment or order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”
In Gilbert v. Endean (1878) 9 Ch.D. 259 at pp. 268-269, C.A. Cotton L.J. held:
“Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in statu quo till the rights can be decided, or for [p.486] the purpose of obtaining some direction of the Court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the Court ultimately to decide upon the rights of the parties.”
An interlocutory decision does not assume finally to dispose of the rights of the parties. It is an order in procedure to preserve matters in statu quo until the rights of the parties can be determined.
The order of the Nkawkaw District Court Grade II dismissing the application to set aside the writ of fieri facias is not interlocutory because it finally disposed of the rights of the parties and completely determined the action. It is a final order, and no leave to appeal is necessary. For these reasons, the appeal against the dismissal of the application to set aside the writ of fieri facias would be allowed and the judgment of the court below set aside.
The grounds on which the appellants applied to the Nkawkaw District Court Grade II to have the writ of fieri facias set aside were that in view of the provisions of the Chieftaincy Act, 1961 (Act 81), s. 39, no rights whatever accrued following the publication of the findings of the Chieftaincy Committee and that the respondents had no right of action.
Section 39 of the Chieftaincy Act, 1961 (Act 81), provided that: [Her ladyship here read the provisions of the section as set out in the headnote and continued:-] Subsection (5) directs that "Where the Minister confirms or amends the findings . . . a notice of the finding as confirmed or amended—(a) shall be published in the Local Government Bulletin and when so published shall be conclusive." There is no provision in the Act for the publication of findings that were neither confirmed nor amended.
The issue to be decided therefore is whether a publication in the Local Government Bulletin with no prior confirmation nor amendment as directed under subsections (2), (3) and (5) of section 39 of the Chieftaincy Act, 1961 (Act 81), is also conclusive or even valid.
The facts before the Nkawkaw District Court were as follows: The Chieftaincy Committee awarded the costs in issue on 28 September 1967. On 5 March 1970, after a period of about three years, the findings of the Committee were published in the Local Government Bulletin No. 12. Contrary to the normal practice, there was no indication in the Bulletin that there had been prior confirmation or amendment of the decision of the Chieftaincy Committee as directed under subsections (2), (3) and (5) of section 39 of the Chieftaincy Act, 1961 (Act 81).
A letter dated 10 March 1970, issued from the Prime Minister's office and served on both parties however states:
"I am directed to draw your attention to the Local Government Bulletin No. 12 of Friday 5 March 1970 in which the findings of the Chieftaincy Committee appointed to hear de novo, the appeal from the decision of the Kwahu Traditional Council have been [p.487] published as follows: 'The plaintiffs' claim be dismissed as unproved and that judgment be entered for the defendants with costs fixed at N¢210.00 inclusive of counsel's.'
2. The above is for your information only. You are, however, at liberty to pursue the matter in accordance with the provisions of Articles 154 and 155 of the Constitution."
Articles 154 and 155 of the Constitution, 1969, referred to in the letter above established respectively the National House of Chiefs and the Regional Houses of Chiefs. Article 154 (3) (a) provides:
"The National House of Chiefs shall, subject to the provisions of clause (3) of article 105 of this Constitution
(a) have appellate jurisdiction in any matter relating to chieftaincy which has been determined by the House of Chiefs in a Region from which appellate jurisdiction there shall be an appeal, with the leave of the Supreme Court or of the National House of Chiefs to the Supreme Court; . . ."
Clause (3) of article 105 of the Constitution provides that: "The Supreme Court shall have appellate jurisdiction to hear and determine any matter which has been determined by the National House of Chiefs." Article 155 (1) provides:
"There shall be established in and for each Region a House of Chiefs which shall
(a) have original jurisdiction in all matters relating to a paramount Stool or the occupant of a paramount Stool."
The Chieftaincy Committee under section 40 of the Chieftaincy Act, 1961 (Act 81), exercised original jurisdiction in matters affecting chieftaincy to which a paramount chief was a party. Section 40 of Act 81 was repealed by the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), on 30 September 1969. But before that date on the promulgation of the Constitution on 22 August 1969, article 155 (1) thereof gave the Regional House of Chiefs original jurisdiction in all matters relating to a paramount stool or the occupant of a paramount stool. The jurisdiction conferred on the National House of Chiefs by article 154 and on the Regional House of Chiefs by article 155 of the Constitution is embodied in the Chieftaincy Act, 1971 (Act 370), ss. 2 (1) and 9 (2) respectively.
However, the finding of the Chieftaincy Committee which is the subject-matter in issue in this case though published on 5 March 1970, was delivered on 27 July 1967 and was still pending confirmation by the minister when the Constitution came into force on 22 August 1969. As a matter pending, the minister had the power to confirm this finding under section 10 of Schedule I (Transitional Provisions) to the Constitution, which provides:
[p.488]
"Where any matter or thing has been commenced before the coming into force of this Constitution by any person or authority having power in that behalf under the existing law, that matter or thing may be carried on and completed by the person or authority having power in that behalf on or after such commencement and it shall not be necessary for any such person or authority to commence any such matter or thing de novo."
Under the Chieftaincy Act, 1961 (Act 81), s. 39 (2) however, confirmation takes place only "if it appears to the Minister that the findings in the report are correct." It was submitted on behalf of the respondents that the rights of the parties accrued on the date of delivery of the findings of the Chieftaincy Committee and that the Constitution did not alter the position of the parties. It was further submitted on behalf of the respondents that the fact that the finding was published, indicated that it was duly confirmed as directed under Act 81, s. 39.
A letter dated 14 February 1971 issuing from the office of the Prime Minister and addressed to the parties leaves no room whatever for speculation on whether or not the finding was confirmed. The letter inter alia states:
"In view, however, of the coming into force of the Constitution on 22 August 1969, the Government is unable to accept or reject the recommendations of the Committee. I am accordingly directed to advise you to pursue your case before the appropriate Traditional Council House of Chiefs if you so wish."
The finding of the Committee was in fact not confirmed by the minister as directed under Act 81, s. 39 and the submission that it must be taken as having been confirmed before its publication, cannot be accepted.
If the mandatory provisions under section 39 of Act 81 had been complied with then the submission that the Constitution did not alter the position of the parties as at the date of delivery of the finding of the Committee might have found some support.
N.L.C.D. 406, para. 12 provides for the application of the Interpretation Act, 1960 (C.A. 4), to the Constitution. Section 8 (1) (c) of C.A. 4 provides: "The repeal or revocation of an enactment shall not affect any right, privilege, obligation or liability acquired, accrued or incurred thereunder." But the issue whether or not the finding of the committee was rendered inconclusive and ineffective by the non-compliance with section 39 of Act 81 has to be resolved before the issue of right can be considered, and under this section, confirmation is not automatic but is given only "if it appears to the Minister that the findings in the report are correct."
It was submitted further that publication in the Local Government Bulletin made the finding conclusive and that the publication alone was sufficient. The court was urged to consider the decision in Republic v. Chieftaincy Committee on Wiamoasehene Stool Affairs; Ex parte Oppong [p.489] Kwame [1972] 1 G.L.R. 60, C.A. In that case, the court held that the publication of the findings was conclusive and that the National Liberation Council had no jurisdiction under the Chieftaincy Act, 1961 (Act 81), to come to a contrary decision in the same matter six months later. The issues before the court in that case were clearly distinguishable from this one. There, the findings of the Chieftaincy Committee were in fact confirmed in accordance with section 39 of the Chieftaincy Act, 1961 (Act 81). The court did not consider the effect of non-compliance with section 39 of Act 81 on the publication in the Local Government Bulletin. It was not a matter in issue as it is in this case.
It is our considered opinion that failure to comply with the mandatory provisions of section 39 of Act 81 is fatal, and no rights accrued under the publication in the Local Government Bulletin No. 12 published on 5 March 1970. It was submitted that the minister after the promulgation of the Constitution could not confirm the findings of the Committee. As pointed out earlier in this judgment the Minister had the power under section 10 of Schedule I (Transitional Provisions) of the Constitution to confirm the findings of the Committee as they were matters pending before the Constitution came into force. Confirmation under the Chieftaincy Act, 1961 (Act 81), s. 39 (2) noted earlier in this judgment is not automatic, it is given only "if it appears to the Minister that the findings in the report are correct . . ." In the letter from the Prime Minister's office dated 14 February 1971, the Prime Minister made it clear that he could neither accept nor reject the findings in question.
We are satisfied that without the confirmation of the findings of the Chieftaincy Committee as directed under section 39 of Act 81, no rights whatever accrued to the parties following the publication of the findings of the Committee in the Local Government Bulletin No. 12 on 5 March 1970, and that the respondents had no right of action.
We therefore allow the appeal against the ruling of the district court dismissing the application to have set aside the writ of fieri facias issued against the appellants. We consider the application well founded and we grant it accordingly. The writ of fieri facias shall be set aside and costs in this court fixed at ¢97.00.
DECISION
Appeal allowed.
S. E. K.
