John Edmund Turkson V. Amoah Ababio & Ors (1949)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for account of mining rents and royalties and for- commission against specified Stools—Jurisdiction—Asamangkese Division Regulation Ordinance, section 6 (as amended by Asamangkese Division Regulation (Amendment) Ordinance)—Certificate of Governor-in–Council–” The amount which ought to be paid “—Construction.
A Certificate of the Governor-in-Council issued pursuant to section 6 of the Asamangkese Division Regulation Ordinance (as amended) has the effect of restricting the issues at the trial of a claim based thereon to the ascertainment of the amount due to the claimant under the Certificate.
While section 6 of the Ordinance, prior to amendment, effected an absolute ouster of the Courts’ jurisdiction, the amendment modified this by allowing the Courts to adjudicate where the Governor-in-Council thought desirable and so certified.
Cases referred to:
(1) Reid v. Reid (1886), 31 Ch. D. 402; 55 L.J. Ch. 294; 54 L.T. 100; 2 T.L.R. 254.
(2)- Abley v. Dale (1851), 20 L.J.C.P. 233; 138 E.R. 519.
Appeal from the Supreme Court of the Gold Coast.
Heward-Mills, Whitaker and Benjamin for Appellant (plaintiff below). Bossman for Respondents (defendants below).
The following judgments were delivered:
Lewey, J.A. In this appeal, the appellant in paragraph 2 of his grounds of appeal, questions the jurisdiction of the trial Judge to determine certain issues upon which the Judge found against the appellant on his claim. That is a point of fundamental importance which this Court has thought it best to decide before dealing with the remaining grounds of appeal, for if the appellant succeeds on that ground, the Judgment of the Court below cannot stand.
The appellant’s claim was for an account of certain mining rents and royalties received by the respondents and of the commission payable to the appellant in respect thereof, and for payment of the amount found to be due to him on the taking of such account. He founded his claim upon an agreement alleged to have been entered into between the appellant and the respondents in or about the month of August, 1921.
The Writ of Summons (which was ordered to be taken as the Statement of Claim) did.not indicate the existence of any statutory restriction as to the issues for determination by the Court, but the first witness called for the appellant produced a certificate of the Governor-in-Council which related to the appellant’s claim, and which had been made by virtue of the provisions of section 6 of the Asamangkese Division Regulation Ordinance (Cap. 78). Thereafter the hearing proceeded as though the merits of the claim were proper to be dealt with, and evidence in great detail was heard as to the history and validity of the agreement upon which the appellant based his claim. In his final address, however, Counsel
for the appellant submitted that the effect of the Certificate was to restrict the issues at the trial to the matter referred to in the Certificate, namely the ascertainment of the amount due to the appellant on his claim, and that the Court therefore had no jurisdiction to conduct a more extended inquiry into the claim itself.
The learned trial Judge did not accept that contention, and he was of the opinion that the jurisdiction of the Court was not so limited by the Certificate or by the provisions of Cap. 78 under which it was issued. In the result, the learned Judge found that the appellant had failed in his claim, and that no money was due to him in respect thereto.
I desire to say at once that, in my view, the learned Judge was wrong in rejecting the contention of the appellant as to the effect of the Certificate of the Governor-in-Council, and in his construction of the amended section 6 of Cap. 78.
What was the purpose and effect of section 6 of Cap. 78 before it was amended by the Asamangkese Division Regulation (Amendment) Ordinance, 1945 (No. 5 of 1945) ? The purpose of the section was clearly to protect the revenues of the Stools in the Asamangkese Division by barring the recovery of existing debts and by prohibiting unauthorised expenditure in the future. Those objects were achieved by providing that no action should lie against a Stool or the officer responsible for the Stool revenue. The effect of that was to deprive the Courts of jurisdiction to entertain any such action:
The amending Ordinance 5 of 1945 added a proviso to section 6 of the principal Ordinance It modified the operation of the section in the case of old standing claims which had been the subject of a statutory enquiry and which the Governor had thought fit to refer to the Executive Council for consideration as to whether the claim or some particular aspect of it, should be adjudicated upon by the Courts. The proviso, therefore, modified the previous absolute ouster of the Courts’ jurisdiction by allowing the Courts to adjudicate where the Governorin-Council considered such a course to be desirable and issued his Certificate to that effect. Furthermore, the proviso refers in detail to three aspects of such a claim, any one of which may, by the terms and the authority of a Certificate, be made the subject of an action against the Stool. Those three aspects are:—
- the claim itself ; or
- any part of the claim; or
- the amount which ought to be paid on the claim.
It seems to me clear therefore, that the effect of the 1945 amendment was to restore to the Courts, in cases where the statutory requirements are satisfied, a measure of the jurisdiction of which they had been deprived by the original provisions of section 6 of Cap. 78. The jurisdiction so restored is, however, in my view, strictly limited to that particular aspect of the matter which, by the terms of the Certificate, is expressly left to the Courts for adjudication.
In the case to which this appeal relates, it is plain from the evidence that the appellant had submitted a claim founded upon an alleged arrangement entered into at a date which brought it within the ambit of the 1945 amendment, that his claim became the subject of a statutory enquiry, and, that the Governor-inCouncil subsequently issued the Certificate which was put in evidence at the trial. The Certificate read as follows:—
” WHEREAS a claim by John Edmund Turkson against the Asamangkese and Akwatia Stools for moneys alleged to be due to him from the said Stools under an agreement made in or about the year 1921, whereby the said Stools agreed to pay to the said John Edmund Turkson is. in theof all moneys received by the said Stools in respect of certain concession granted to the Consolidated African Selection Trust Limited and the West African Diamond Syndicate, has been referred for consideration to the
Executive Council pursuant to the terms of the proviso to sub-sectim (2)
of section 6 of the Asamangkese Division Regulation Ordinance (Cap. 78):
AND WHEREAS the Governor-in-Council considers it desirable that the amount which ought to be paid in respect to the said claim should be adjudicated upon in an action against the said Stools:
NOW THEREFORE pursuant to the terms of paragraph (ii) of the proviso to sub-section (2) of section 6 aforesaid, the Governor-in-Council, hereby certifies that in his opinion the circumstances are such that the matter, to wit, the amount which ought to be paid in respect to the said claim, may properly be the subject of legal proceedings by the said John Edmund Turkson against the said Stools.”
It is to be observed that the matter to be adjudicated upon by the Court is simply ” the amount which ought to be paid in respect to the said claim ” and not the validity of the claim itself.
The learned Judge, however, as I have already indicated, was not prepared to interpret the Ordinance and the Certificate in that way, and proceeded to inquire into the claim itself and the agreement upon which the appellant relied.
It is true that the learned Judge concluded his judgment with the following words ” I find that no money is due to the plaintiff in respect of his claim in this suit “, and that if one took those words out of their context it might appear that the finding of the Judge was within the terms of the Certificate. Moreover, the mere fact that the Judge examined the agreement upon which the claim was based would not of itself lead to the conclusion that he exceeded his jurisdiction, since it was inevitable that he should have examined the nature of the claim in order to ascertain the amount due. But a study of the judgment is fatal to any such line of argument, since it is apparent that the learned Judge went farther than this, for he made it plain that he considered he had jurisdiction to adjudicate in detail upon the claim and to examine the legal effect of the contract relied on by the appellant, and that he rejected the contention that he should proceed on the basis that the claim had already been admitted by the Governor-in-Council.
As the learned Judge was, in my view, wrong in arriving at that conclusion, it follows that he acted in excess of the jurisdiction conferred upon him. I have considered whether it would be possible for this Court to deal with the judgment so that the part which relates to the validity of the agreement could be severed from the findings that no money was due on the claim. But I have come to the conclusion that it is not possible to follow such a course, not only because the judgment must be read as a whole, but also because it is beyond question that the Judge’s findings were based on the assumption that he had full jurisdiction to try the whole claim upon its merits and to adjudicate upon its validity, and that his finding that no money was due was the direct consequence of his finding that the claim itself had not been established.
In my view, therefore, the appeal must be allowed, the order of the trial Judge set aside and the case should be remitted to the Court below to determine the sole issue which has been left to the Court by the Certificate of the Governorin-Council, namely, the amount which ought to be paid in respect to the appellant’s claim.
Blackall, P. I have read the judgment of my brother Lewey and I agree with his interpretation of the Certificate of the Governor-in-Council. I do so with some reluctance for I doubt if members of the Executive Council, when issuing the Certificate, fully realised that they were tying the hands of the Asamangkese and Akwatia Stools by precluding them from contesting the appellant’s claim on the merits, or’impugning the validity of the agreement upon which it is based. Moreover, it seems somewhat Gilbertian for Coussey, J., to be directed to ascertain how much ought to be paid to the appellant seeing that the learned Judge, after
a full consideration of the whole matter, came to the conclusion that nothing was due to him.
If then the Certificate were susceptible of two interpretations I would adopt that of the Court below, for where the language admits of two constructions one of which would lead to injustice or absurdity, the Courts act upon the view that such a result could not have been intended, unless the intention had been manifest in express words. Further, ” if the words are ambiguous and one construction leads to enormous inconvenience and another construction does not, the one that leads to least inconvenience is to be preferred ” (Reid v. Reid) (1). But the argument ab inconvenienti is only admissible in construction where the meaning of the instrument is obscure. ” If ” as Jervis, C.J., said in Abley v. Dale (2) ” the precise words used are plain and unambiguous, we are bound. to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning”.
Now in my view there is no ambiguity in the proviso to section 6 of the Asamangkese Division Regulation Ordinance. It envisages that the Governor may entertain doubts on all or any of the points mentioned in the first paragraph and if he does, it empowers him to refer them to the Executive Council for consideration. If that body is of opinion that it is desirable in the interests of justice that any of those points should be adjudicated upon in an action against the Stool, the Governor-in-Council issues a Certificate specifying the matter upon which a Court may adjudicate. The effect of the Certificate, in my opinion, is to lift the ban upon legal proceedings imposed by section 6 to the extent mentioned in the Certificate but no further. If the Certificate sets out that the claim or any part of it, may be adjudicated upon in an action, the Court hearing it may enquire into and decide upon the validity of the claim or of the part specified, as fully and freely as it would deal with any other claim coming before the Court. But if (as in the present case) the terms of the Certificate restrict the adjudication to the question of the amount to be paid to the claimant, the Court is placed in a position more analogous to that of an arbitrator, who must not purport to determine matters not comprised in the submission. In my view then, the trial Judge in the present case had only a limited authority, viz., to adjudicate upon the matter set out in the Certificate, and it was not competent for him to enquire into the validity of the claim itself. I agree therefore that the appeal should be allowed.
Appeal allowed and case remitted to the Supreme Court.