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DISTRICT COMMISSIONER
V.
ROBERT DANIEL PATTERSON (NO. 1)
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
7TH DAY OF MARCH, 1944
2PLR/1944/13 (WACA)
OTHER CITATION(S)
(1944) X WACA PP. 128 – 131
2PLR/1944/13 (WACA)
LEX (1944) – WACA PP. 128 – 131
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
GRAHAM PAUL, C.J., SIERRA LEONE
DOORLY AG. C.J., GOLD COAST
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MATTER/BETWEEN
[In re PEACE PRESERVATION (LABADI) ORDER, 1942
AND
In re ROBERT DANIEL PAITERSON, House No. E1 /17
AND
IN THE MATTER OF APPLICATION FOR WRIT OF PROHIBITION TO ISSUE HEREIN]
DISTRICT COMMISSIONER – Appellant
AND
ROBERT DANIEL PATTERSON – Respondent
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ORIGINATING COURT(S)/TRIBUNAL(S)
Appeal by applicant, Robert Daniel Patterson, from the refusal of the Divisional Court, Accra, to issue a writ of-prohibition against the District Commissioner, the District Magistrate, and the Sheriff.
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REPRESENTATION
K. A. Bossman with N. A. Ollennu — for Appellant
J. S. Manyo Plange, Crown Counsel — for Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ADMINISTRATIVE AND GOVERNMENT LAW:- Writ of Prohibition — Official not vested with judicial duties pursuant to a statute under which he acted — Merely executive action — Whether writ of prohibition can be issued against
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PRACTICE AND PROCEDURE ISSUE(S)
COURT:- District Commissioner and the Magistrate — Where both deemed as both functio officio — Whether writ of prohibition could not be granted
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CASE SUMMARY
Labadi was placed under the Peace Preservation Ordinance by proclamation, and the cost of extra police was charged on its inhabitants by Order in Council under s. 9 and assessed amongst them by the District Commissioner; the District Magistrate issued a writ of attachment against Patterson’s house as he had failed to pay his share, which (writ) the Sheriff carried out. Patterson thereupon moved the Divisional Court of Accra to issue a writ of prohibition against the said officers on the ground that the section had not been complied with and the writ of attachment should not have been issued, but his application was refused and he appealed. It was argued for him that the District Commissioner was a judicial officer for the purposes of the section but had not acted judicially; and that the Magistrate should not have issued a writ of attachment without notice. For the Respondents it was argued that they had acted executively or ministerially under the section.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):-
(1) that the words “after enquiry” in section 9 of the Peace Preservation Ordinance did not confer or impose on the District Commissioner duties as a judicial officer and his act under that section was merely executive.
(2) that the said section did not require the Magistrate to give notice before issuing a writ of attachment, and his issuing such writ under that section was merely ministerial.
(3) that the vital point being whether they had the duty to act judicially, as they had no such duty, the writ of prohibition had been rightly refused in their case as well as in that of the Sheriff, whose function was also not Judicial.
(4) Held also, in regard to the District Commissioner and the Magistrate, that they were both functio officio, for which reason alone the writ of prohibition could not be granted.
This report and the judgment are confined to the merits. (There was a preliminary objection that no appeal lay, in regard to which see Report No. I sub eod nom).
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MAIN JUDGMENT
The judgment of the Court was read by the President:—
This is an appeal from a “Judgment” of the Supreme Court refusing to issue a Writ of prohibition.
The Appellant moved the Divisional Court, Accra, “for an Order calling upon the District Commissioner, Accra, as Execution-Creditor in the above case, the District Magistrate, Accra, and the Sheriff, Accra, To SHOW CAUSE WHY AN ORDER FOR WRIT OF PROHIBITION should not issue to prohibit them from proceeding any further in the above suits against the said ROBERT DANIEL PATTERSON the applicant herein, and in particular from proceeding into execution by attaching the Real and personal properties of the said Applicant— AND for such further Order as to the Court may seem meet.”
The facts of the case are shortly stated in the judgment of the lower Court as follows:-
“On 29th September, 1942, the town of Labadi was placed under the Peace Preservation Ordinance by proclamation. Under section 9 of the Ordinance the inhabitants of the proclaimed district, which consisted of an area with a radius of one mile of Labadi market, by order in Council of 30th November, 1942, were charged with the cost of additional police stationed there. The District Commissioner assessed the proportion of such cost which each inhabitant was to pay. Notice of the assessment requiring payment to be made at the District Commissioner’s Office, Accra, within 7 days of January 14th, 1943, was posted at the District Commissioners Office, Accra, and copies of it were also posted at conspicuous places at Labadi including the Mantse We (Chief’s residence).
“Patterson and 11 others did not comply. On 22nd April, the District Commissioner made application to the District Magistrate, Accra, for a writ of attachment to be issued in respect of Patterson’s house. This was done and the house was attached, as well as those of other persons who failed to pay.”
The main ground of appeal to this Court is that the Court below was wrong in deciding that “the District Commissioner’s procedure was entirely in accordance with the section: it was a ministerial act, not a judicial one : therefore it was not the act of an inferior Court; a writ of prohibition could not issue so far as concerns the District Commissioner.” The section referred to is section 9 of the Peace Preservation Ordinance (Cap. 4:0) which is in the following terms:-
“9. Where additional constabulary or police have been sent up to or stationed in a proclaimed district the Governor in Council may order that the inhabitants of such proclaimed district be charged with the coat of such additional constabulary or police.
“A District Commissioner within whose district any portion of a proclaimed district is shall, after enquiry, if necessary assess the proportion in which such cost is to be paid by the said inhabitants according to his judgment of their respective means.
“All moneys payable under this section may be levied under the law for the time being in force for the levying of moneys ordered by a Court to be paid.”
The submission made by Counsel on behalf of the Appellant was that on principle as well as by the very wording of the section the District Commissioner was made a judicial officer ad hoc, and was bound to exercise his discretion judicially; that by omitting to hold an enquiry or to give notice to the persons concerned that they were about to be assessed, he failed to exercise any judicial discretion, so that his assessment is invalid and the proceedings are illegal and should be stopped by issue of the writ as prayed. In support of his argument Counsel referred to the following extract in the Judgment of Hewart, L.C.J. in the case of Rex v. North Worcestershire Assessment Committee, ex parte Hadley (1929) 2.K.B., 397 at page 406, being a dictum of Atkin, L.J. (as he then was) in the case of Rex v, Electricity Commissioners (1924) 1. K.B. 171:—
“Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”
We draw special attention to the words “and having the duty to act judicially.”
That is the vital point. In reply to these arguments Counsel for the Respondents submitted:-
“The whole of Chapter 40 is punitive legislation, which is only applicable in certain circumstances, viz: when the public peace is disturbed or endangered. The act of the District Commissioner under section 9 is purely an executive act. The liability of the inhabitants is determined by Order in Council. The District Commissioner is merely an executive officer who, by virtue of his position, is in touch with the people of the District, and, by virtue of his knowledge is directed to spread out the liability amongst the people in accordance with his knowledge.
“He does not have to make an enquiry, if the matter is within his knowledge. The words “after enquiry” do not impose upon him any powers or duties as a judicial officer; he is an executive officer throughout, a writ’ will not lie to such an officer.”
We entirely concur with these submissions by Respondents’ Counsel and we do not think that the reasoning can be improved upon. That disposes of the appeal so far as the District Commissioner is concerned, except that we should add that there is a second reason for refusing a writ directed to the District Commissioner namely that he is functus officio. He has completed his assessment and his duties are over. There are no further steps left for him to take and it is not he who is proceeding to execution. It is difficult to see what it is asked that he should be prohibited from doing. So far as the District Magistrate is concerned the portion of the “Judgment” of the Court below which is attacked upon the appeal is:-
“As regards the actual attachment of the house, that also was in conformity with the Ordinance. The issue of the writ of attachment was a judicial act by the District Magistrate, an inferior Court. Was it in excess of jurisdiction or contrary to any statute or of the principles of common law ? The District Magistrate undoubtedly had jurisdiction to issue the writ of attachment; the process which he issued was in accordance with the relevant ordinance (Cap. 40). Prohibition could not lie on those grounds.”
The argument of Appellant’s Counsel as to this is that after assessment, the District Commissioner gave no personal notice to the Appellant requiring him to pay, no notice of assessment and no demand for payment; that the notice given (namely the posting of notices at the District Commissioner’s office, the Mantse We and other conspicuous places at Labadi) was not proper notice; that before execution could issue there ought to have been proper notice; that-the issue of a writ of Fi. Fa. without notice was wrong and that in any case before a Writ of Fi. Fa. could issue the order for payment ought to have been registered as a judgment of the District Magistrate’s Court.
As to this it will be observed that the complaint is entirely of past acts, and again it is not clear what act on the part of the District Magistrate it is sought to prohibit. The District Magistrate, like the District Commissioner, is functui officio, and for this reason alone the writ could not be granted.
But in addition Counsel for the Respondents has submitted that the act of the District Magistrate in issuing the writ is a ministerial act and not a judicial one. In support of this contention he relies upon a dictum of Fletcher-Moulton, L.J. in the case of Rex v. Woodhouse (1906) 2. K.B., 501 at 535:-
“The true view of the limitation would seem to· be that the term “judicial act” is used in contrast with purely ministerial acts. To these latter the process of certiorari does· not apply, as for instance to the issue of a warrant to enforce a rate, even though the rate is one which could itself be questioned by certiorari.”
We agree with him on this point and we are of opinion that a writ could not, in any case, be issued to the Magistrate to prohibit him from carrying out his clear duty under the law, which makes no provision requiring the giving of notice before issue of writ.
As to the Sheriff, obviously he is not acting judicially and the writ will not lie.
In our view these whole proceedings by way of an application for the issue of a writ of prohibition were entirely misconceived.
The appeal is dismissed with costs assessed at £33 18s. 6d.
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