Baker ,.Ag. C.J. This is an appeal from the decision of the Eastern Judicial Division of the Supreme Court. The suit was instituted by virtue of the Petitions of Right Ordinance (Cap. 18 of the Gold Coast Laws).
The Appellant Company’s claim was:- (1) A declaration that it is entitled to a refund of an amount of export duty paid by it in any year equivalent to 15 per cent of the loss which would have resulted to it if the gold premium accruing to it in respect of the year for which the accounts relating to its operations are made up had not been brought into account for that year subject in any year to the provisions contained in 17A (2), (a), (b), and (c) of the said regulations. (2) A declaration that the plaintiff is entitled to refunds in respect of the years 19~2, 1943 and 1944 of the sum of £17,113 13s. 0d., £16,661 2s. 0d. and £19,92817s. 0d. respectively. (3) Payment of the said sums.”
The relevant provisions are contained in the Regulations as amended by the Customs Tariff Amendment Regulations, 1933 and 1939, made under the Customs Tariff Order in Council No. 45 of 1939 which provide as follows:- “17. (1) ‘Gold premium’ for the purposes of Schedule 3 to the Customs Tariff Ordinance shall mean the amount of the current market price of fine gold per ounce troy in London on the day when gold subject to export duty under the said schedule is sold by the exporter less 84s. 11td. per ounce troy. “(2) Where it is proved to the satisfaction of the Governor that the operations of any person or company actively engaged in mining would have resulted in a loss before bringing into account the gold premium accruing in respect of the period for which the accounts relating to the operations of such person or company are made up, there shall be refunded to such person or company who has paid export duty calculated on the gold premium an amount equivalent to 15 per cent of such loss provided that- “(a) in assessing the loss of any such company regard shall not be had to the loss of any undertaking associated with or subsidiary to such company, and “(b) no refund to a person or company on account of a loss shall exceed the amount previously paid by such person or company in respect of the export duty on the gold sold by such person or company and brought to account during the period for which such loss has been calculated. “(c) no refund shall be made under this regulation in respect of any part of the gold premium in excess of 65s. ld.”
There is no dispute with regard to the fact that certain sums are due to appellants, for defendants in their defence state that the operations of the plaintiffs before bringing into account the gold premium, would have resulted in a loss for the years claimed by the plaintiffs. Upon the hearing of the suit defendants contended that as a matter of law the trial Court had no jurisdiction to entertain the suit inasmuch as under the provisions of paragraph 2 of regulation 17 of the before-mentioned Customs Tariff Regulations, the decision as to whether the operations of the plaintiffs have in any period resulted in a loss within the meaning of the said paragraph is vested solely in the Governor.
After hearing both parties the learned trial Judge gave a ruling the material part for the purpose of this appeal reads as follows:- “I hold that the Plaintiffs had not complied with the provisions of Regulation 17 (2) before the statement of claim was filed and when the Governor’s fiat was granted, the said provision had not been complied with. That the grant of the Governor’s fiat does not deprive the Government as defendants, of the right of a defendant in a suit.
“I therefore uphold the defendants’ objection and rule that this Court has no jurisdiction to entertain the suit; I dismiss it with costs assessed at 45 guineas.”
It is to be noted that the trial Judge does not set out what the actual provisions were which had not been complied-with before the Statement of Claim had been filed and before the Governor’s fiat had been granted.
Against this judgment the plaintiff company appealed upon the following grounds:- “(1) That the learned Judge was wrong in law in holding that the Court had no jurisdiction to entertain the suit.
“(2) That the Court should have entertained the suit and in so far as necessary decided whether it had been proved to the satisfaction of the Governor that the operations of the plaintiff would have resulted in a loss before bringing into account the gold premium in respect of each of the years ended 31st March, 1942, 1943 and 1944.
“(3) That it being admitted on behalf of His Majesty that the operations of the plaintiff would have resulted in a loss before bringing into account the gold premium in respect of each of the years ended 31st March, 1942, 1943, and 1944, the Court should have decided the question referred to in Ground (2) above in favour of the plaintiff.
“(4) That the fact (if it be a fact) that the checking of the Plaintiff’s accounts for the two years ended 31st March, 1943 and 1944 had not been completed by the Accountant-General at the time when the Statement of Claim was filed and the Governor’s fiat granted was, in the circumstances, immaterial and did not debar the Court from entertaining the suit and deciding the question referred to in Ground (2) above in favuur of the plaintiff.
“(5) That in any event the Court should have entertained the suit in so far as it claimed a refund in respect of the year ended 31st March, 1942, and should on the facts proved or admitted, have found that the refund claimed by the plaintiff, namely, £17,113 13s. Od. was due to the plaintiff.
“(6) That further in any event the Court should have entertained the suit in so far as it claimed a declaration as to the true construction of Regulation 17 of the regulations made under section 13 of the Customs Tariff (No.2) Order as amended and should have decided that the construction contended for by the plaintiff was the right construction and that the construction contended for by the defendant was not the right construction.
“(7) That on the facts proved or admitted the Court should in law have given judgment for the plaintiff for the relief claimed in the Statement ofClaim and costs.”
“(8) That the contentions on behalf of the defendant set out in the Ruling of the learned Judge are wrong and the contentions on behalf of the plaintiff set out in the said Ruling are, right.”
It is abundantly clear that the only issues before this Court are to decide whether the Court had jurisdiction to entertain this suit or not and if so was a petition of right the proper procedure.
Counsel for appellant has argued, that, construing the Regulations in their ordinary and proper meaning which are plain and unambiguous, the Governor has a right under Regulation 17 (2) (a) to decide whether there has been a loss or not, that this might be an unfettered discretion, but that in our present case the Governor had in fact decided there was a loss and that paragraphs (a), (b) and (c) of the Regulation 17 (2) only provided the means enabling him to ascertain “whether there was a loss or not but did not empower him to decide what the loss actually was; in other words, the Regulations gave the Governor a complete discretion to decide if there was a loss or not but after having made this decision the direction ceased and did not apply to the ascertainment of the loss; and that the before-mentioned paragraphs (a), (b) and (c) of the before-mentioned Regulation were only provisos to enable the Governor to decide whether there was an actual loss. the said paragraphs providing certain relief to plaintiffs which the Governor must take into consideration before deciding if a loss had in fact been suffered and what the limits of those losses were.
Counsel for the Crown submitted that Regulation 17 (2) gave the Governor discretionary and exclusive power not only to determine the hypothetical loss the plaintiffs may have suffered but the actual amount, and the only remedy plaintiffs would have would be by writ of mandamus or certiorari, and only then in case. the Governor had acted mala fides, exceeded his jurisdiction, or taken extraneous matters into consideration upon arriving at his conclusion; that a petition of right which plaintiffs had resorted to was not the proper procedure and that the trial Judge was correct in dismissing the action for lack of jurisdiction; he further argued that paragraph (c) empowered the Governor to assess the loss and that such’ assessment when made was entirely within his discretion which was unfettered.
My first consideration is the question whether Regulation 17 (2) comers an unfettered jurisdiction in the Governor to determine not only that there has been a loss but what the actual loss and refund should be, and construing the Regulation and giving it, its true, plain, and ordinary meaning-I find it is in no way ambiguous, and am satisfied that 17 (2) of the Regulations undoubtedly gives the Governor the exclusive right to decide whether there is or would be a loss but that paragraphs (a), (b) and (c) do not confer on him the exclusive right to determine the amount of the loss, for after giving the Governor power to decide whether there is a loss, paragraph (a) goes on to say” In assessing the loss of any company regard shall not be had, etc.”, then follows in the said paragraphs (a), (b) and (c) what I construe to be certain reliefs to be granted to the company before arriving at a decision as to whether there has been a loss or not.
My next concern is with the proper action which the Appellant Company should have taken when suing for a return of money which is alleged to have been overpaid. It is well established that a petition of right is the proper process by which property of any kind including money or damages is recovered from the Crown whether the basis of the claimant's title be legal or equitable-see Halsbury, 2nd Edition, Vol. 9, para. 1176, p. 533.
Numerous cases have been cited to us including the case of R. v. The Commissioner of Inland Revenue in re Nathan (1), which is very similar to our present case; this was a case where the Prosecutors applied by way of mandamus for a return of excess probate duty which they alleged had been overpaid and which the Commissioners of Inland Revenue were empowered by Statute to return on proof that money had been paid in excess of that which Prosecutors were called on to pay. It was held that in such a case, the money being in the hand of the Crown, a mandamus ought not to issue but the proper remedy was by petition of right.
It is perfectly clear that the alleged excess duty is not money paid to the Governor in his own right either officially or individually, but money paid to the Crown for the use of the Crown and therefore is paid into the general funds of the Colony (in contemplation of law it is paid into the hands of the Crown). A petition of right will lie to the Crown upon the simple statement that the money is in the hands of the Crown and ought to be paid back and accordingly if appellants have any remedy it must be by petition of right. I find that the trial Court had jurisdiction to try the question of what, if any excess duty had been paid by appellants and give a declaration accordingly and the case is remitted to the lower Court to hear argument and decide what amount (if any) appellants are entitled to as a refund of export duty.
M’Carthy, Ag. C.J. I have had the advantage of reading the judgments of the two other members of this Court, and am happy to find myself substantially in agreement with them. I do not propose to reproduce in my judgment the relevant legislation as this appears in the other judgments. or to refer to the authorities cited in them.
The learned trial Judge dismissed the suit in the following terms: “I hold that the Plaintiff had not complied with the provisions of Regulation 17 (2) before the Statement of Claim was filed, and when the Governor’s fiat was granted, the said provisions had not been complied with. That the grant of the Governor's fiat does not deprive the Movement as defendant, of the rights of a defendant in a suit.
“I therefore uphold the defendant’s objection and rule that this Court had no jurisdiction to entertain the suit.” I agree with the finding on the point relating to the Governor’s fiat. As regards the other question as to jurisdiction, the learned Judge apparently based his conclusion on the ground that in respect of the part of the claim relating to the 1942 accounts the plaintiff before the action was not in a position to show that the Governor was satisfied that there was a loss within the meaning of Regulation 17 (2), and that as regards the years 1943 and 1944 it was reasonably clear that in fact the Governor was not so satisfied before the action.
But prior to the hearing the defendant admitted that there was a loss within the meaning of the Regulation in respect of each of these three years, and this must be taken to have been proved to the satisfaction of the Governor. In these circumstances I cannot see that the fact that the plaintiff could not have proved this before he commenced the action was a relevant consideration.
At least as regards the 1942 accounts I can find nothing to justify tae learned Judge’s finding in point of time, and in considering this matter he appears to have overlooked the accounts for this year. Moreover whereas the defendant made the said admissions in his pleadings in respect of the years 1942, 1943 and 1944, he did not take this objection as to time which seems to me to have been waived.
In any case if the principle for which the plaintiff contends is established in respect of anyone year, his end will have been substantially attained, as the principle would obviously apply to the other years.
In my opinion there are only two serious issues between the parties:- (1) Whether as the plaintiff contends the Regulation places upon the Governor exclusively only the duty of ascertaining if there had been a hypothetical loss, in an indefinite sense, or whether as the defendant contends the Regulation places upon the Governor exclusively the duty of ascertaining the amount of such loss (if any);
(2) The defendant further contends that in ascertaining the hypothetical loss the Governor by virtue of Regulation 17 (2) (c) the Company’s account can only be debited with that part of the gold premium which does not exceed 65s. Old. whereas according to the plaintiff the said r account should be debited with the whole of the gold premium, it being alleged that paragraph (c) is not concerned with the ascertainment of the loss, and merely relates to the refund based on the loss.
This issue is illustrated by Exhibits Bl, B2 and B3. According to the Company’s interpretation of paragraph (c) it is entitled to a refund in the aggregate of £53,703 12s. 0d.; according to the Government's interpretation the Company is only entitled to £23,703 10s. 0d.
Issue (1), of course, depends upon the construction of the language of Regulation 17. The words in sub-regulation (2) would have resulted in a loss if not construed with the rest of the sub-regulation clearly support the plaintiff's interpretation. But the defendant submits that in order not to do violence to the language of Regulation 17 (2) the Court must have regard to each of the provisions of the Regulation. Thus paragraph (a) of sub-regulation (2) which obviously would have to be taken into consideration by the Governor in the exercise of his discretion (whatever it may be) refers to assessing the loss”, i.e. a definite ascertained loss. It might then be argued that the words such loss” at the end of the first part of sub-regulation (2) refer to a definite loss, i.e. the loss ascertained by the Governor. These specific points were not actually advanced before this Court by Counsel for the defendant who seemed to rely as regards this issue on the general argument that the whole language of the Regulation showed that its intention was as maintained by the defendant.
While the Governor is undoubtedly at least given sole discretion in ascertaining whether there would have been a loss, there is nothing in the Regulation which unequivocally indicates what this sole discretion extends to determination of the amount of the loss. I find that it is not established that the intention is that the Governor’s discretion goes beyond ascertaining that there would have been a loss. If the contrary had been the intention one would have expected it to be shown in reasonably clear language, and this to my mind has not been done Issue (2) remains undetermined, and as it has not been argued before us, I am of opinion, in view of the foregoing, that the judgment appealed against should be set aside and the case remitted to the Court below for further hearing and determination.
Beoku-Betts, J. In this case the plaintiffs claim:- (a) a declaration that they are entitled to a refund of an amount of export duty paid by them in any year equivalent to 15 per cent of the loss which would have resulted to them if the gold premi accruing to them in respect of the year for which the accounts relating to its operations are made up had not been brought into account for that year subject in any year to the provisions contained in Regulation 17 (2) (a), (b), and (c) of the Customs Tariff Regulations.
(b) A declaration that they are entitled to refund in respect of the years 1942,1943 and 1944 of the sum of £17,113 13s. 0d., £16.661 2s. 0d. and , £19,928 12s. 0d. respectively.
(c) Payment of the said sums.
The defendant by his defence pleaded that the Court had no jurisdiction to entertain the suit inasmuch under the provisions of paragraph 2 of the Customs Tariff Regulations, the decision, as to whether the operations of the plaintiffs have in any period resulted in a loss within the meaning of the paragraph, is vested solely in the Governor.
The learned trial Judge in. his ruling held that the Court. had no jurisdiction on the ground that, at the time when the statement of claim was filed for the I issue of the fiat, the provisions of Regulation 17 (2) of the Customs Tariff Regulations had not been complied with, in that the Governor had not been satisfied there was a loss. Learned Crown Counsel for the respondent does not appear to base his objection to the jurisdiction of the Court on the ground given by the learned Judge. He admitted that the ruling deals with the fulfillment of conditions precedent to a cause of action and not to the jurisdiction of the Court. The material difference between the two being that, while conditions precedent , to a cause of action may be waive, an objection to the jurisdiction cannot be waived, for consent cannot give Jurisdiction where none exists. (Halsbury’s Laws of England, 2nd Edition, Vol. 8, p. 533, paragraph 1178).
Now dealing with the reason given by the learned Judge in his ruling, it will be seen that when the defence was delivered, the defendant, in paragraphs 4. 5, and 6 of the defence, stated that the operations of the plaintiffs, before bringing into account the gold premium, would have resulted in a loss in the years as claimed by the plaintiffs. The defence also stated the amount of the loss for the years respectively as calculated. So that the question whether there would have been a loss in the years claimed by the plaintiffs was put beyond controversy. It may therefore be said the defence contained admissions that the conditions precedent had been fulfilled, or at any rate there were sufficient admissions to lead to the inference that any such condition precedent had been waived. Therefore, with the greatest respect, I do not agree with the learned trial Judge as to the reason given by him in his ruling for holding that the Court had no jurisdiction.
“I have next to consider the submissions by learned Crown Counsel as to the interpretation of Regulation 17 (2) of the Customs Tariff Regulations. Learned Crown Counsel contended that by Regulation 17 (2) exclusive power or right is given to the Governor to determine the hypothetical loss, including the amount, and unless it can be proved that the Governor has acted mala fides or taken extraneous matters into consideration or exceeded his jurisdiction, the Court cannot interfere and even if any of these matters is alleged and proved, the correct procedure is by mandamus or certiorari and not by petition of right. This involves the consideration of the following questions:-
(1) Do the words of Regulation 17 (2) confer an exclusive right on the Governor to determine the amount of the loss, and the amount of the refund?
(2) Is it correct that in any case the proper method of approach to the Court is by either mandamus or certiorari ? As regards the first of these questions, Regulation 17 (2) provides that: “Where it is proved to the satisfaction of the Governor that the operations of any person or company actively engaged in mining would have resulted in a loss before bringing into account the gold premium accruing in respect of the period for which the accounts relating to the operations of such person or company are made up, there shall be refunded to such person or company who has paid export duty calculated on the gold premium an amount equivalent to 15 per cent of such loss provided that- (a) in assessing the loss of any such company regard shall not be had to the loss of any undertaking associated with or subsidiary to such company, and
“(b) no refund to a person or company on account of a loss shall exceed the amount previously paid by such person or company in respect of the export duty on the gold sold by such person or company and brought to account during the period for which such loss has been calculated.
“(c) no refund shall be made under this regulation in respect of any part of the gold premium in excess of 65s. 01d.”
It is a well-known rule of construction that when the language of a statute is plain, the construction is that the legislature must have intended what is actually expressed.
In Maxwell on the Interpretation of Statutes, 8th Edition, p. 4, it is stated: “The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expressions used therein rather than from any notions which may be entertained by the Court as to what is just or expedient. The words cannot be construed contrary to their meaning as embracing or excluding cases merely because no good reason appears why they should be excluded or embraced. However unjust, arbitrary or inconvenient the meaning conveyed may be, it must receive its full effect. When once the meaning is plain, it is not the province of the Court to scan its wisdom or its policy. Its duty is not to make the law reasonable but to expound it as it stands.”
Applying this principle of construction, it seems to me that the Regulation 17 (2), (a); (b) and (c) contemplate three things, namely: (1) Whether there would be a loss. (2) Assessment of the loss. (3) Refund on account of the loss.
Regulation 17 (2) clearly gives the Governor the exclusive right to decide whether there would be a loss. In the determining of this matter, the Governor is the sole Judge and the Court cannot interfere. There is no express provision as to the power to assess the loss. It cannot be implied that that also is vested in the Governor. If that had been the intention it would have been expressly provided. When it is borne in mind that any such question, if held to be within the exclusive province of the Governor, would result in the exclusion of the jurisdiction of the Court, express words would be required to produce that effect. Nothing is to w regarded as outside the jurisdiction of the Court unless so expressly provided (Halsbury's Laws of England, 2nd Edition, Vol. 6, pp. 550 and 553).
In the case of R. v. Commissioner of Income Tax for City of London (2), relied upon by the respondent, it was provided by section 23 (2) of the Customs and Inland Revenue Act, 1890, that the Commissioners of Inland Revenue shall on proof to their satisfaction of the amount of loss, etc., do certain things. There was express provision entitling the Commissioners to determine the amount of the loss. When, therefore, it was held in the judgment that exclusive right was given to the Commissioners of Inland Revenue to determine the amount of the loss, it is understandable. The right of the Governor to determine the amount of the loss was not provided for in the Regulations. In my opinion it cannot be implied. It may be for good and sufficient reason that it is not so provided. The right in an individual or body to exclusive power to determine a particular matter or question contemplates the exercise by the person or body of persons themselves of the authority. The right is personal and where he is or they are to arrive at a decision, it must be his or their own decision. The Governor may well be competent to decide whether there would be a loss, but in all probability he may not be contemplate to determine the amount of the loss without relying almost entirely on others. It is therefore not unreasonable that the assessment of the loss should be outside the province of his exclusive jurisdiction and left to others more acquainted with figures. If that is the intention of the Regulation, then the authority of the Courts would remain unimpaired. As regards the refund, there is no provision conferring any poor on the Governor. The refund is to be determined in accordance with the provisions of Regulation 17 (2) (b) and (c), and it is quite competent for the Court to ascertain whether these rules have been followed or infringed. In these circumstances, the Court below had full jurisdiction to try the case.
The question whether the procedure should be by mandamus or certiorari does not arise. As in my opinion the determination of the amount of the loss or the amount of the refund is not within the exclusive jurisdiction of the Governor, the correct procedure would be by petition of right, that being the appropriate remedy when any claim for relief is made against the Crown (Halsbury’s Laws of England, 2nd Edition, Vol. 6, p. 482). In particular where there is a claim for refund of money from the Crown the proper procedure is by petition of right (Robertson on Civil Proceedings against the Crown, pp. 343-346). R. v. The Commissioners of Inland Revenue In re Nathan (1). In my opinion the Court below had jurisdiction and the case should be remitted for trial by the Court below.
Appeal allowed.