IN THE HIGH COURT, ACCRA

4/4/1974

ABBAN J.

REPUBLIC v. CONTROLLER AND ACCOUNTANT-GENERAL; EX PARTE

DIZENGOFF (W.A.) LTD.

(Page 337)

State proceedings — Judgments and execution — Acknowledgment of debt —

Proceedings by way of mandamus to compel government to pay an acknowledged debt
for which a treasury draft had been issued — Whether issue of mandamus would in the
circumstances amount to a "grant of relief against the Republic which could not have
been obtained in proceedings against the Republic" — Whether mandamus a process "in
the nature of attachment" or "in the nature of execution for enforcing payment " —
Whether mandamus against respondent in the person of Controller and Accountant-
General would make respondent "individually liable" — State Proceedings Act, 1961
(Act 51), ss. 13 (2) and 15 (4).

State proceedings — Mandamus — Government debt — Acknowledgment of debt and

issue of treasury draft — Controller and Accountant-General instructed by competent
authority not to authorise payment but to retain money as set-off against money due to
government — Application for order of mandamus against Accountant-General —
Failure to prove existence of statutory or common law duty — Difficulties of
enforcement —Whether mandamus an appropriate remedy — Financial Administration
Decree, 1967 (N.L. C. D. 165), para. 42 (1).

Public officer — Mandamus — Superior orders — Controller and Accountant-General

receiving instructions from Principal Secretary, Ministry of Finance, not to authorise
payment of treasury drafts — Mandamus sought to compel payment — Principal
Secretary competent authority to give such instructions which had to be obeyed —
Whether mandamus appropriate remedy — N. L. C. D. 165, para. 42 (1).

It is provided by the Financial Administration Decree, 1967 (N.L.C.D. 165), para. .42 (1)
that:

"42. (1) Where, in the opinion of the Principal Secretary, after consultation with the
Attorney-General, any person is indebted to the Government, in any specific sum of
money, the Principal Secretary may authorise the retention by way of deduction or set-off
of the amount of any such indebtedness out of any sum of money that may be due or
payable by the Government to any such person."
In November 1973, the Eastern Regional Administration sent a treasury draft for
¢91,845.00 to D. Ltd. in payment for services rendered. Acting under N.L.C.D. 165,
para. 42 (1), the Principal Secretary, Ministry of Finance, instructed the Controller and
Accountant-General to retain that amount by way of deduction or set-off against an
amount of ¢100,000.00 paid to D. Ltd. under a mistake of fact and which was the subject-
matter of separate proceedings between D. Ltd. and the Attorney-General.

When after repeated demands the Controller and Accountant-General failed to authorise
the payment of ¢91,845.00 or any part thereof, D. Ltd.

(Page 330)

applied to the High Court for an Order of mandamus to compel him to authorise payment.

There were two main issues before the court, (1) whether in view of the State
Proceedings Act, 1961 (Act 51), ss. 13 (2) and 15 (4) the court had jurisdiction to
entertain the application, and (2) whether the Controller and Accountant-General could
be compelled by mandamus to authorise payment, and if he could, whether in the
particular circumstances mandamus was the appropriate remedy.

Held:

(1) in construing Act 51, ss. 13 (2) and 15 (4) it was necessary to explain the meaning of
the words by an examination of the purport and effect of other sections in the same Act.
Both sections came under Part III of the Act which was captioned "Judgments and
Execution." Section 13 (2) precluded the court from granting "a relief against the
Republic which could not be obtained in proceedings against the Republic." Since the
government acting through the Eastern Regional Administration had acknowledged the
debt and issued a treasury draft in respect thereof, an order of mandamus would not be
tantamount to granting a "relief against the Republic" of the nature contemplated by
section 13 (2). Section 15 which dealt with satisfaction of orders was also inapplicable
since an order of mandamus could not in any circumstances be described as a process "in
the nature of attachment," or "in the nature of execution for enforcing payment" of
judgment debts and costs. Nor would mandamus if granted have the effect of making the
respondent "individually liable" since the actual payment was not to be made by the
respondent himself but by another public servant. Asamoah v. The Republic [1972] 1
G.L.R. 117 cited.

(2) Mandamus should not issue because:

(a) N.L.C.D. 165 did not create any legal duty between the parties and the applicant had
failed to prove the existence of any statutory or common law duty which had been
imposed upon the respondent and which was the foundation of mandamus. Dicta of Lord
Halsbury L.C. in Commissioners for Special Purposes of Income Tax v. Pemsel [1891]
A.C. 531 at p. 539, H.L. and of Lord Campbell C.J. in Ex parte Napier (1852) 18 Q.B.D.
692 at p. 695 applied. R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1
W.L.R. 1150 at p. 1153; R. v. Commissioners of Inland Revenue; In re Nathan (1884) 12
Q.B.D. 461, C.A. and R. v. Lords Commissioners of the Treasury (1872) 7 Q.B.D. 387 at
p. 395 cited. Mould v. de Vine [1962] 1 G.L.R. 533 distinguished;

(b) it was in the circumstances an inappropriate remedy for actual payment of the amount
sought would be made not by the respondent but by the treasury officer and it would be
difficult to enforce the order of mandamus against him, thus rendering the order
ineffective and useless.

(3) Under N.L.C.D. 165, para. 42 (1) the Principal Secretary, Ministry of Finance was the
competent authority to give instructions and directives to the respondent and the
respondent was in duty bound to obey them. Where a public officer had received an
order from any competent authority and upon disobeying that order would be liable to
indictment, the court could not proceed by mandamus but would leave the case to the
ordinary remedies which in the particular circumstances of this case might be a specially
endorsed writ. Dictum of Coleridge J. in R. v. Payn (1837) 6 Ad. & El. 392 at p. 401
applied.

(Page 339)

Cases referred to

(1) Asamoah v. The Republic [1972] 1 G.L.R. 117.

(2) Commissioners for Special Purposes of Income Tax v. Pemlse [1891] A.C. 531; 61
L.J.Q.B. 265; 65 L.T. 621; 55 J.P. 805; 7 T.L.R. 657, H.L.

(3) R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1 W.L.R. 1150;

[1953] 2 All E.R. 717; 117 J.P. 440; 79 S.J. 590.

(4) Mould v. de Vine [1962] 1 G.L.R. 533.

(5) Ex parte Napier (1852) 18 Q.B.D. 692; 21 L.J.Q.B. 332; 17 Jur, 380; sub nom. R. v.
East India Co.; Ex parte Napier 19 L.T. (o.s) 214.

(6) R. v. Commissioners of Inland Revenue; In re Nathan (1884) 12 Q.B.D. 461; 53

L.J.Q.B. 229; 51 L.T. 46; 48 J.P. 452; 32 W.R. 543, C.A.

(7) R. v. Lords Commissioners of the Treasury (1872) 7 Q.B.D. 387; 41 L.J.Q.B. 178; 26
L.T. 64; 36 J.P. 661; 20 W.R. 336; 12 Cox C.C. 277.

(8) R. v. Payn (1837) 6 Ad. & El. 392; 1 J.P. 37; 1 Jur. 54; 112 E.R. 150.

APPLICATION for an order of mandamus to compel the Controller and Accountant-

General to authorise the payment of sums of money due to the applicant and endorsed on
a treasury draft. The facts are set out fully in the ruling.
C. A. Lokko for the applicant.
C. K. A. Anson, Senior State Attorney, for the respondent.

Abban J. The application is for an order of mandamus under Order 59, r. 2 of the
Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), to compel the
Controller and Accountant-General, the respondent herein, to authorise payment of
certain sums of money due to the applicant. The applicant is a limited liability company.
It performed some services for the Eastern Regional Administration and for those
services the said Regional Administration became indebted to the applicant in the sum of
¢91,845.00.

In November 1973, the Eastern Regional Administration sent a treasury draft of the order
of ¢91,845.00 to the applicant. It is the case of the applicant that despite repeated
requests, the respondent has refused to authorise payment of the said amount of
¢91,845.00 or any part thereof.

In paragraph (5) of the affidavit sworn to by the general manager of the applicant
company, the reasons for the said refusal have been set out. The paragraph reads as
follows:

"(5) That the Controller and Accountant-General's refusal to authorise payment is based
on a claim of the sum of ¢100,000.00 from my company for which my company does not
admit liability and that the said claim is the subject of suit No. 162/1972 entitled The
Attorney-General versus Dizengoff (West Africa) Limited awaiting a hearing date before
the High Court."

(Page 340)

The said general manager, on behalf of the applicant company, further stated that the
amount of ¢91,845.00 is "in respect of an entirely different transaction and has no
connection whatsoever with the said claim of ¢100,000.00" now the subject-matter of suit
No. 162/1972. The purpose of the present application, as already stated, is therefore to
compel the respondent to go ahead and give the necessary authorisation for the payment
of the ¢91,845.00, despite the pendency of the said suit.

Learned counsel for the applicant contended that the respondent has no right to refuse
payment. For, once the treasury draft has been issued, a statutory duty is cast on the
respondent to authorise payment. Counsel submitted that the refusal of the respondent
was also unlawful since the refusal was not based on any of the circumstances listed in
paragraph 19 (5) of the Financial Administration Decree, 1967 (N.L.C,D. 165). Counsel
again referred to paragraph 42 (1) of the said Decree, and argued that even though the
respondent, in his belated supplemental affidavit, stated that the "Principal Secretary,
Ministry of Finance, had recently given directives to suspend payment," there is nothing
to show how recent the so-called directives are; and in all probability, no such directives
were ever given to the respondent. In any case, submitted counsel, since it is established
that the government, through the Eastern Regional Administration, is indebted to the
applicant, and the question whether or not the applicant is also indebted to the
government is a matter yet to be decided by the High Court, the Principal Secretary,
Ministry of Finance, did not properly exercise his discretion in giving those directives to
the respondent. Consequently, the respondent cannot seek shelter under paragraph 42 (1)
of the said N. L.C. D. 165, and the order of a mandamus can issue.

The application was resisted by the respondent. The learned senior state attorney, who
appeared for the respondent, submitted that the application is misconceived. He
contended that if the applicant genuinely believed that the government through the
Eastern Regional Administration, was indebted to the applicant, the appropriate
procedure which the applicant ought to have adopted was to have issued an ordinary writ
of summons against the Attorney-General to recover that debt, and not to come by way of
mandamus. Counsel referred also to sections 13 (2) and 15 (4) of the State Proceedings
Act, 1961 (Act 51), and further submitted that under those sections this court has no
jurisdiction to entertain the present application.

On the merits of the application, learned counsel for the respondent submitted that the
applicant has not been able to show that a specific statutory duty has been imposed on the
respondent to authorise payment of moneys owed to the applicant by any regional
administration or by the government. Counsel, however, referred to the affidavit of the
respondent filed on 7 March 1974, and contended that quite apart from the absence of
statutory duty, the respondent was directed by the Principal Secretary, Ministry of
Finance "to suspend authorisation of the payment

(Page 341)

of that amount," and that the said Principal Secretary properly exercised his powers and
discretion under section 42 (1) of the said Financial Administration Decree, 1967
(N.L.C.D. 165). Counsel therefore submitted that the respondent in refusing to authorise
payment was only obeying the instructions or orders from his superior officer and
mandamus should not issue against the respondent.

I will first dispose of the argument based on sections 13 (2),and 15 (4) of the State
Proceedings Act, 1961 (Act 51). If the contention of learned counsel for the respondent
is right it will mean that by those sections no prerogative writs can ever issue against any
public servant acting in his official capacity. In my view, those sections ought to be
given a very narrow interpretation. Section 13 (2) reads as follows:

"13. (2) The court shall not in any civil proceedings grant any injunction or make any
order against a servant of the Republic if the effect of granting the injunction or making
the order would be to grant relief against the Republic which could not have been
obtained in proceedings against the Republic."

The section is concerned with injunction orders and any other order which, if made, will
in effect be the same as an injunction order; or may amount to granting a remedy against
the Republic, which remedy the plaintiff or the applicant could not have "obtained in
proceedings against the Republic."

In the first place, the order of mandamus is not equivalent to an order of injunction.
Secondly, the order of mandamus, being sought in this particular case, if granted, will not
in any way affect the Republic. Before the application was filed, the government, acting
through the Eastern Regional Administration, had already acknowledged the debt and
had, in fact, issued a treasury draft in respect thereof. To the government therefore the
money could be paid. Thus, the applicant is contending, whether rightly or wrongly, that
it is now the statutory duty of the respondent to give formal authorisation for payment;
and according to the applicant, the statutory duty could completely be performed by the
respondent who did not require any further concurrence of the government. In a situation
like this, I think the order of mandamus, if granted against the respondent, will not
adversely affect the Republic, and will not be tantamount to granting a "relief against the
Republic," as contemplated by the provisions of section 13 (2).

The other objection to the court's jurisdiction, founded on section 15 (4) of the said Act
51, is also misconceived. The section provides that:

"15. (4) Save as aforesaid no execution or attachment or process in the nature thereof
shall be issued out of any court for enforcing payment by the Republic of any such
money or costs as aforesaid, and no person shall be individually liable under any order
for the payment by the Republic or any department or servant of the Republic, of any
such money or costs."

(Page 342)

In construing section 15 (4), the other subsections of that section 15 and indeed all the
other sections of the Act, must be taken into account.

"It cannot be over-emphasized that in construing a section of an Act of Parliament, it is

always necessary to explain the meaning of the words by an examination of the purport
and effect of the other sections in the same Act."

See Asamoah v. The Republic [1972] 1 G.L.R. 117 at p. 120.

The State Proceedings Act, 1961 (Act 51), has been divided into four parts, Part I—Part
IV. It will be noticed that Part III has the following caption, "Judgments and Execution."
Section 15, like section 13, falls under this Part III, and section 15 (1), (2) and (3) deal
with "satisfaction of orders." That is, they lay down the procedure which a judgment
creditor of the Republic (or of any department or of the servant of the Republic) should
follow in order to obtain the fruits of the judgment or order which has been given or
made in his favour; and section 15 (4) deals with execution, attachment "and or
processes" which are analogous to execution and attachment, and which are designed to
enforce "payment of money and costs." Reading section 15 (4) in conjunction with the
provisions of the other subsections of that section, I am of the opinion that the words
"money and costs" in the said section 15 (4) refer to judgment debts or sums of money
and costs which have been awarded against the Republic by the court or by any other
competent tribunal.

The present motion is not for an order for attachment; neither is it for an order to go into
execution nor for payment of any judgment debt and costs. In other words, an
application for an order of mandamus cannot, under any circumstances, be described as a
process "in the nature of attachment," or "in the nature of execution for enforcing
payment" of judgment debt and costs. The primary purpose of the application herein is to
compel the respondent to give instructions to the pay officer, or the treasury officer,
whoever that might be, to pay some amount, and it is clear that that amount in question is
not a judgment debt nor costs which have been awarded by any court. Section 15 (4) is
therefore inapplicable.

Furthermore, even though the ultimate aim of the applicant is to have some money paid,
the actual payment, however, is to be done not by the respondent himself, but by another
public servant who is quite different from the respondent; and the duty of that pay officer
will arise only after the respondent has exercised his powers, if any, and given the
necessary authorisation. Thus, it cannot also be argued that the order of mandamus, if
granted, will make the respondent herein, "individually liable ... for the payment of
money and costs." So whichever way one looks at it, the provisions of section 15 (4) do
not apply to the present case, and this court therefore has jurisdiction to entertain the
application.

I will now consider the application on its merits. The question to be asked is, can the
respondent be compelled by the writ of mandamus to authorise payment of the sum of
¢91,845.00 to the applicant? It is necessary, at this stage, to remind oneself of the
principles relevant to

(Page 343)

the application. In the Judicial Review of Administrative Action by S. A. de Smith (2nd

ed.), pp. 575—576, the learned author in discussing the circumstances under which the
writ of mandamus can be issued against the servant of the Crown, said:

"Where, however, a duty has been directly imposed by statute for the benefit of the
subject upon a Crown servant as persona designata, and the duty is to be wholly
discharged by him in his own official capacity, as distinct from his capacity as an adviser
to or instrument of the Crown, the courts have shown readiness to grant applications for
mandamus by persons who have a direct and substantial interest in securing the
performance of the duty."

It may therefore be said that where a statutory duty is imposed in peremptory terms upon
an executive official, the courts will examine the facts of the case to see whether the duty
has arisen, and if satisfied that it has arisen, it will grant a mandamus ordering its
performance. In Commissioners for Special Purposes of Income Tax v. Pemsel [1891]
A.C. 531 at p. 539, H.L., Lord Halsbury L.C. observed:

"The statute under which the Commissioners are acting is peremptory in its terms to the
Commissioners to make the allowance, and to give the certificates in cases where they
are commanded to be given. If, therefore, the case is made out that the facts show a case
where the allowance ought to be made, and the certificate, which is merely consequential,
should be given, there is a plain duty imposed by the statute on these executive officers,
the neglect of which is properly enforceable by mandamus."

The authorities also make it abundantly clear that the legal obligation or duty which is the
foundation of mandamus can arise from the common law, from a statute or even from
contract: see R. v. Metropolitan Police Commissioner; Ex parte Parker [1953] 1
W.L.R.1150 at p. 1153, per Lord Goddard C.J.

Bearing in mind, then, the statements of the legal position, how far do the facts of the
present case accord with the statements of the law. That is, has any obligation been
imposed on the respondent by any statute, common law or contract for the benefit of the
applicant? I have carefully considered the submissions of learned counsel, as well as the
affidavit filed, and I cannot find any legal obligation which enjoins the respondent to
authorise payment of sums of money that have been endorsed on treasury drafts which
have been drawn or issued in favour of members of the public. Learned counsel for the
applicant placed some reliance on the case of Mould v. de Vine [1962] 1 G.L.R. 533,
where the engineer in charge of the Accra Waterworks (the respondent in that case) was
compelled by mandamus to re-connect or cause to be re-connected a water pipe to the
applicant's house.

The learned judge in that case found that the Water Supply Authority, responsible for the
said waterworks, had a statutory duty to supply water to members of the public. The
duty, which was of a public nature, was

(Page 344)

to be carried out by the servants of the Water Supply Authority, including the respondent;
and non-performance of it in fact affected the applicant adversely. What was more,
unlike the respondent in the present case, the said engineer in charge of the waterworks
was unable to show good cause for refusing to re-connect the water pipe in order to
supply water to the applicant. But in the instant case, however, the applicant, has not
proved the existence of any statutory or common law duty which has been imposed on
the respondent.

The Financial Administration Decree, 1967 (N.L.C.D. 165), which learned counsel for
the applicant seemed to have relied upon, does not create any legal duty between the
respondent and the applicant. I have gone through that Decree, and I have not come
across any paragraph in the said Decree which enjoins the respondent to give
authorisation for payment of moneys stated on treasury drafts, such as the one the
applicant is supposed to be holding at the moment. In Ex parte Napier (1852) 18 Q.B.D.
692 at p. 695, Lord Campell C.J. in discharging the rule, said:

"The applicant must make out that there is a legal obligation on the East India Company
to pay him the sum he demands, and that he has no remedy to recover it by action. The
latter point becomes material only when the former has been established, for the
existence of a legal right or obligation is the foundation of every writ of mandamus."
(The emphasis is mine.)

It must be remembered that in R. v. Commissioners of Inland Revenue; In re Nathan

(1884) 12 Q.B.D. 461, C.A. the Court of Appeal held that mandamus could not issue,
because the statute under which the applicant sought the mandamus created no duty
between the commissioners and the applicant, "whose remedy, if the decision of the
Commissioners could be reviewed, was by petition of right." See also R. v. Lords
Commissioners of the Treasury (1872) 7 Q.B.D. 387 at p. 395 per Cockburn C.J. I think
even if the applicant herein had been able to prove that a legal duty had been imposed on
the respondent to authorise payment, I would still have refused the application. For, in
the circumstances of this case, mandamus is not the proper remedy. Mandamus like all
other prerogative writs, is a discretionary remedy. So that even where an applicant has
satisfied all the primary requirements for the "award of the remedy," the court may,
nevertheless, refuse it on the ground that another remedy equally effective is available.

The applicant is asking for an order to force the respondent to authorise or to give
directives to the treasury officer (another public servant) to pay a certain amount.
Suppose the court makes the order and the respondent obeys the order by giving the
necessary authorisation to the treasury officer to pay, but that treasury officer refuses to
make payment, what then will happen? It will be difficult, in those circumstances, to
enforce the order of mandamus against the treasury officer, no order having been made
against him to make any payment. The mandamus will therefore become ineffective and
useless so far as that treasury officer is concerned.

(Page 345)

As already stated, the applicant is after money due to the applicant from the Eastern
Regional Administration; and if for some reasons payment is being delayed unduly, the
best course for the applicant to take is to sue for the amount, say, on a specially endorsed
writ, since the face of it, the Eastern Regional Administration may not have any valid
defence. I do not therefore see why the applicant should seek an order of mandamus
against the respondent and which order, in the long run, may not get the applicant the
money the applicant is after, if the situation which I have just posed above arises.

I am therefore of the opinion that mandamus is not the appropriate remedy and, as I have
said, I would have refused the application even if all the pre-requisites for granting the
order of mandamus had been established by the applicant. Lord Brett M.R., when
delivering his judgment in the case of In re Nathan, which I have already referred to,
supra, said at p. 475:
"Where there is no specific remedy by which justice can be done, the Court will grant a
mandamus, but where there is a specific remedy by which the subject will get justice by a
judicial decision of the Courts, then it is within the reason of the rule, that if there is such
a remedy a mandamus ought not to issue."

However, the application can be refused on another ground. That is, even if it is
conceded that a statutory duty is cast on the respondent to authorise payment of the said
amount, the respondent in my view, had good cause for refusing to perform that duty. In
the respondent's affidavit, filed on 7 March 1974, the respondent stated that the Principal
Secretary of the Ministry of Finance, in consultation with the Attorney-General had
instructed the respondent to retain the amount of ¢91,845.00 by way of deduction or set-
off against the amount of ¢100,000.00 which had already been paid to the applicant under
a mistake of fact. The respondent serves under the Ministry of Finance, and the Principal
Secretary of that Ministry has power under paragraph 42 (1) of the Financial
Administration Decree, 1967 (N.L.C.D. 165), to give the respondent the instructions as
stated above. The said paragraph 42 (1) provides that:

"42. (1) Where, in the opinion of the Principal Secretary, after consultation with the
Attorney-General, any person is indebted to the Government, in any specific sum of
money, the Principal Secretary may authorise the retention by way of deduction or set-off
of the amount of any such indebtedness out of any sum of money that may be due or
payable by the Government to any such person."

It is clear from the above provision that discretion has been conferred on the said
Principal Secretary and, contrary to the submission of learned counsel for the applicant, I
do not think the said discretion was improperly or capriciously exercised by the Principal
Secretary, having regard to the fact that the applicant has been sued by the Attorney-
General for the

(Page 346)

refund of the sum of ¢1000.00 and the suit is still pending before the court. In any case, I
find that the Principal Secretary, Ministry of Finance, is a competent authority to give
instructions and directives to the respondent. In the circumstances, it is neither here nor
there whether the said Principal Secretary did or did not exercise his said discretion
properly in authorising the retention by way of deduction or set-off.

The respondent, having received those instructions or directives, was in duty bound to
obey them. If the respondent had refused to obey those instructions it was likely that
some disciplinary action could have been taken against him. The respondent therefore
had a valid and lawful excuse for not authorising payment. In R. v. Payn (1837) 6 Ad. &
El. 392 at p. 401, Coleridge J. put the matter in the following language:

"My only doubt was whether mandamus be the proper remedy. The result of the cases
cited appears to be merely this: that, where we find a public officer, who has received an
order from his masters or any competent authority, and who upon disobeying that order
will be liable to indictment, we do not proceed by mandamus. The Court leaves the case
to the ordinary remedies, not because the party is too low, but because he has received an
order from competent authority."

(The emphasis is mine.)

For the above reasons, I hold that the applicant is not entitled to an order of mandamus.
Consequently, the application will be and is hereby dismissed. There will be no order as
to costs.

Application dismissed.

S. E. K.