The Queen V. The Governor-in-council, Western Region (1962)

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BAIRAMIAN, FJ

This appeal is an effort to persuade the court that, in spite of the embargo in the laws of the Western Region, Kester, J., did wrong (on the 18th July, 1960, in suit M/46/59) when he refused an order of certiorari for the purpose of quashing the approval of the Governor-in-Council to the appointment of Lawani Kehinde as the Bale of Lanlate, lbarapa District Council, dated the 20th July, 1959, and published in the Gazette of 6th August, 1959.

Reference was made to section 3 of the Administration of Justice (Crown Proceedings) Law, 1959, which provides that-

‘( 1) The High Court shall not have jurisdiction issue an order of mandamus. an order of prohibition or an order of certiorari to the Governor or the Governor-in-Council in respect of-

(a) the approval or setting aside of the appointment of any chief;

(b) the suspension or disposition of any chief;

(c) any decision of the Governor or the Governor-in-Council in a dispute with regard to the appointment of a chieftaincy;

(d) any other thing done or required to be done by the Governor or the Governor-in-Council, under any enactment relating to chiefs.

‘(2) In this section enactment relating to chiefs includes the Appointment and Desposition of Chiefs Ordinance, the Western Region Appointment and Recognition of Chiefs Law, 1954 (as from time to time amended) and the Chiefs Law, 1957 (as from time to time amended).

‘(3) For the further avoidance of doubt it is declared that the provisions of this section extend to things done before as well as after, the commencement of this Law.’

For the appellant it is argued that the words ‘under any enactment relating to chiefs,’ at the end of subsection (1), do not protect an act done outside the said enactment; that where the Governor-in-Council purports to approve an appointment which is not within the law, it is not an exercise of discretion, but a usurpation of jurisdiction, and subject to certiorari; and that on the facts the present was such a case.

It is settled law that despite express words taking away certiorari the court will issue it for manifest defect of jurisdiction in the tribunal which made the order, and the objection may be founded on the character and constitution of the inferior court, the nature of the subject matter of the inquiry, or the absence of some preliminary proceeding which was necessary to give jurisdiction to the inferior court: Colonial Bank of Australasia v, Willian (1874), L.R., Vo1.5 of P.C. Appeals p. 417; Ex parte Bradlaugh 1878, 3 Q.B.D. 509; R. v. Hurst, Ex parte Smith (1960) 2 W.L.R., 961; Re Gilmores Application (1957) 1 All E.R.,796. In the words of Parker, L.J., (as he then was) in Re Gilmores Application, (supra, at p.804) ‘a decision arrived at without jurisdiction is, in effect, a nullity’. The learned Judge goes on to say:-

This, however, is not so where the remedy is invoked for error of law on the fact of the decision. In such a case it cannot be said that the decision is a nullity. The error however grave, is a wrong exercise of a jurisdiction which he has, and not a usurpation of a jurisdiction which he has not: see per Lord Sumner in R. v. Nat Bell Liquors Ltd., (1962) 2 A.C. 128, at p.l51′.

‘And to that may be added from the headnote to Colonial Bank of Australasia v. Willan, that-