REPUBLIC v. CHIEF ACCOUNTANT, DISTRICT TREASURY, KUMASI;EX PARTE BADU
1971
HIGH COURT
GHANA
CORAM
- MENSA BOISON J
Areas of Law
- Administrative Law
- Civil Procedure
1971
HIGH COURT
GHANA
CORAM
AI Generated Summary
Mensa Boison J. considered an application by a moneylender seeking mandamus to compel the chief accountant of the Government Treasury Department to deliver mortgage deed No. 2463/70 after stamping. The deed was executed on 13 July 1970 and lodged at the District Treasury, Kumasi, on 22 July 1970 with Form P.D.1 under the Stamp Act, 1965 (Act 311). The respondent sent the deed to the Lands Department for assessment but failed to notify the applicant when the assessment was returned; the applicant’s solicitor attempted to pay within two months but was rebuffed, and by September the respondent demanded a penalty. While criticizing the respondent’s conduct as oppressive, the court held that section 15(2) mandates a penalty for stamping after two months regardless of fault and that mandamus cannot compel an action contrary to statute. The application was dismissed with no order as to costs.
JUDGMENT OF MENSA BOISON J.
This is an application for a rule absolute for an order of mandamus directing the chief accountant of the Government Treasury Department to deliver a mortgage deed No. 2463/70 (hereafter to be referred to as the deed) executed on 13 July 1970 to the applicant.
The respondent is charged with the collection of duties under the Stamp Act, 1965 (Act 311). By section 15 (1) and (2) it is provided that:
“(1) Except where express provision is made to the contrary by this Act, any unstamped or insufficiently stamped instrument may be stamped with an impressed stamp at any time within two months after its execution, on payment of the unpaid duty.
(2) No instrument shall be so stamped after the time limit mentioned in subsection (1) of this section, except upon payment of the unpaid duty in addition to a penalty of twelve cedis.”
It is common ground that on 22 July 1970 the applicant lodged with the District Treasury, Kumasi, the deed executed on 13 July 1970, for an assessment and payment of the necessary stamp duty. To escape payment of any penalty it meant the deed must be stamped on or before 12 August 1970.
The case for the respondent is that after lodgment of the deed on 22 July, neither the applicant nor his solicitor called to pay the duty till September 1970. As penalty was then due, the respondent refused to stamp the deed unless the penalty was paid.
According to the unopposed affidavit of the applicant the deed was accompanied by the prescribed Form P. D. 1 completed as required under section 16 of Act 311. Among the particulars was the name and address of the applicant. Again on the unchallenged affidavit of the applicant when his solicitor lodged the deed with the respondent, the respondent told the solicitor that he, the respondent, was to send the deed to the Lands Department for assessment.
The question is how was the applicant or his solicitor to know that the deed has been returned to the respondent from the Lands Department, unless the respondent informed the applicant by the address given on the Form P.D. 1. It is not disputed that the respondent did not inform the applicant. Was the applicant expected to stop his business as a citizen and to keep running up and down to the respondent to find out whether the deed had been assessed by the Lands Department?
When an enactment imposes a penalty upon a citizen, I think it is a fair interpretation that the penalty should be exigible only as a result of default of t