The Queen V. The Governor-in-council, Western Region (1962)
LawGlobal-Hub Lead Judgment Report
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-
‘The objection of defect of jurisdiction cannot be entertained if it rests solely on the ground that the judge has erroneously found a fact which was essential to the validity of his order, but which he was competent to try’.
Thus, defect of jurisdiction relates to embarking on the case, and not to miscarriage in the course of it or to the correctness of the decision. If, for example, a magistrate gives judgement on a claim for £1,000 it is immaterial that he tried the case well and arrived at the right conclusion; as his jurisdiction does not extend to such a claim, his judgement is a nullity. If, on the other hand, the claim is for, say £100 as his jurisdiction extends to that amount, it is immaterial that he made mistakes of law or on the facts: however faulty otherwise, his judgement is not a nullity. It follows that in an application for certiorari for want of jurisdiction, to quote again from the headnote to the Colonial Bank of Australasia v. Willan-
‘Matters on which the defect of jurisdiction depends may be apparent on the fact of the proceedings, or may be brought before the superior court by affidavit, but they must be extrinsic to the adjudication impeached.’
The grounds of the present application are-
‘I. That the Governor-in-Council had no jurisdiction to grant approval to the said appointment which was made without complying with Section 11 of the Chiefs Law, 1957, and consequently not an appointment within the Chiefs Law, 1957.
‘2. That before granting the said approval and recognition the Governor-in-Council failed to act judicially by failing to consider a petition protesting against the said appointment forwarded to the Governor-in-Council as soon as the Labebe Ruling House knew of Lawani Kehindes recommendation for approval.
‘3. That Lawani Kehinde was not a person qualified to fill a vacancy in a recognised Chieftaincy within the Chiefs Law, 1957, section 10, and therefore the Governor-in-Council had no jurisdiction to accord him approval’.
If under that Law it is within the competence of the Governor-in-Council to determine whether section II had been complied with, and whether Lawani Kehinde was qualified within section 10, the approval of his appointment cannot be said to have been given without jurisdiction.
The matter is governed by section 16 of the Chiefs Law, 1957, which provides that-
‘(I) subject to the provisions of this section, the Governor-in-Council may approve or set aside an appointment of a recognised chief.
‘(2) The Governor-in-Council shall not approve or set aside an appointment within the period of twenty-one days after notification in accordance with section 15 and during that period-
(a) an unsuccessful candidate; or
(b) a ruling house in respect of the chieftaincy which alleges that the proper order of rotation has not been observed, may make representations to the Governor-in-council in the manner prescribed that the appointment be set aside.
‘(3) In determining whether to approve or set aside an appointment under this section the Governor-in-Council may have regard to-
(a) whether the provisions of section 11 or section 12 have been complied with;
(b) whether any candidate was qualified or disqualified in accordance with the provisions of section 10; etc .
‘(6) The decision of the Governor-in-Council under this section shall be final and shall not be questioned in any court’.
Plainly, matters under section 10 or 11 are entrusted to the Governor-in-Council to decide, in determining whether to approve or set aside the appointment. There is that prescribed interval of twenty one days which is designed to enable those interested in the appointment to the vacant chieftaincy to make their representations. Presumably, if any such representations are made, they will be considered. The legislature has faith in the Governor-in-Council that they will be: for the Law makes their decision final and not open to question in the courts. It is exceedingly difficult to appreciate a ground which alleges that they failed to consider the appellants protest. However, the difficulty does not arise here, for his affidavit in support of his grounds does not say that he sent in a protest within that period, or at all.
The affidavit states that the appellant had been the Mogaji of Lanlate, and that by tradition the Mogaji becomes Bale when the stool becomes vacant; that the office of Bale is a recognised Chieftaincy within Part II of the Chiefs Law, 1957, and became vacant (which means that it was within the jurisdiction of the Governor-in-Council to approve the appointment of a successor); and that after the death of the late Bale-
‘the family selected me for appointment as the Bale of Lanlate according to custom but one Lawani Kehinde stood as rival on his own initiative;’
The affidavit goes on to speak of a Chieftaincy meeting in March, 1958, and of another on 7th July 1958, which recommended him for appointment; of the registered Declaration on custom being amended in between, and the Ministers order for the proceedings of appointment to be started de novo; of an ‘alleged King-makers’ meeting’ on 13th January 1951, held without notice to the Labebe Ruling House, (at which, as the minutes of the meeting show – they were attached to the affidavit – it was resolved to appoint Lawani Kehinde as between him and the appellant, who were the two put up by the Labebe ruling house, whose turn it was to have the Bale); that the Secretary of the District Council had failed to notify the Labebe house, or they would have nominated him unanimously; that those present at the meeting were not, except one, king-makers; that selection is made by rotation between the Labebe and the Bioku: that the late Bale had been from the Bioku house and was their Mogaji before he became Bale according to custom; that there had been no Bale from the Lawani Kehinde family; that Lawani Kehinde had no relation to the Labebe house, and no right to be selected or appointed Bale; that no properly constituted Chieftaincy committee recommended his appointment; nor could the Labebe house nominate him if the Secretary of the Council had notified them to nominate a candidate; that the appointment of Lawani Kehinde has been published in the Gazette; and that it is not in compliance with the Chiefs Law, 1957. nor with custom.
The only comment needed here is that those allegations are not extrinsic to the approval impeached in the case-or, rather, to be accurate, the only statements which are extrinsic are the paragraphs (4 and 5 of the affidavit) which state that the chieftaincy was one to which Part 11 of the Chiefs Law applied and was vacant; for the rest, the affidavit is designed to show that Lawani Kehinde was not duly selected nor qualified for appointment, but the appellant was, as the Mogaji of the Labebe House.
There are counter-affidavits that things were done properly, from which it is enough for present purposes to note that the Secretary to the Premier and the Executive Council states that to the best of his knowledge no petition was received by the Governor-in-Council protesting against the appointment of Lawani Kehinde.
At the hearing of the appeal, learned counsel for the appellant presented his compliant in this way: the secretary of the council did not observe section 11: after registration of the Declaration, no nominations were invited from the family; so, the person recognised by the Governor-in-Council was not qualified under section to for appointment, for he was not someone proposed by the appropriate ruling house; consequently (the argument ran) it was not under, but outside the Chiefs Law that the Governor-in-Council approved.
Learned counsel cited R. v. Governor-in-Council, W.R., ex parte Adejuwon Odubote, (1961), W.R.N.L.R. 95 and no doubt wished the court to look at the present case as being similar to that. But the chieftaincy there was said to be not one to which Part II of the Law applied, which meant that there was no jurisdiction in the case. One other reason given in that case was that no report had been submitted and considered under section 37 of the 1954 Law (relevant to that case) which the learned Judge regarded as a condition precedent to approval. Per contra, in the present case it is stated that the 1957 Law does apply to the chieftaincy in question; and the second ground in the application for certiorari speaks of the said ‘appointment’ forwarded to the Governor-in-Council for approval; thus, the present case differs from that.
It is only natural that, where certiorari lies within a limited field, as here, the case for it will be presented in a guise which appears to bring it within that field; but the courts must be careful to see that it does in truth lie within that field. On the test that the facts alleged must be extrinsic to the adjudication impeached, where the basis for certiorari is want of jurisdiction, the present application is outside that limited field.
The appeal fails and is dismissed with costs to the respondents assessed at fifteen guineas.
Other Citation: (1962) LCN/0974(SC)