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F.S.C. 139/1961

11TH JANUARY, 1962.

3PLR/1962/72 (FSC)







SIR VAHE BAIRAMIAN, F.J. (Read the Judgment of the Court)



PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – CERTIORARI – Refusal of – Whether the fact that order to be quashed is a nullity should be a barrier to granting of certiorari.

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – CERTIORARI – Senior District Officer acting without jurisdiction – Confir­mation of by Governor – Effect.

PRACTICE AND PROCEDURE – JURISDICTION – Absence of – Parties acquiescing – Effect.

PRACTICE AND PROCEDURE – PROHIBITION – Grant of – Whether discretionary.

WORDS AND PHRASES – “Jurisdiction” – “Contingent jurisdiction” – Meanings of



Araka – for the Appellant.

Somiari -for the 1st Respondent.

Balonwu -for the 2nd Respondent.


BAIRAMIAN, F.J. (Delivering the Judgment of the Court): This appeal arises in proceedings of certiorari which the applicant took in the High Court of the Eastern Region for the purpose of bringing into court the judgments of the Senior District Officer dated 18th February, 1955, and of the Gover­nor of the Region dated 5th August, 1955, in the Uturu Native Court Civil Case Suit No. 41/54, and having them quashed. He complains against the re­fusal, on the 1st August, 1959, of the High Court to make the order nisi ab­solute.


The learned Judge was of opinion that the decision in In re Daws, (1838), 8 Ad. & El. 936; 112 E.R. 1095, was not distinguishable in principle from the present case, and went on to hold that:­


“Mr. Floyer having no legal authority to embark upon the appeal the proceedings are an absolute nullity and certiorari pro­ceedings do not lie.”


I think that the learned Judge had no report of the case before him. It was a case in which a coroner’s clerk held an inquisition in the absence of the coroner and signed it with his name as the coroner; eight months later the father of the deceased applied for certiorari to bring it up and have it quashed on the ground that a melius inquirendum was necessary; the rule was re­fused, and these were grounds given by Denman, L.C.J.:­


“If you wish to take any further proceeding and have a right to do so, how can you be prevented by the act of a person calling himself the coroner but really a stranger? I think that to grant this rule would be doing a very unnecessary act, to set on foot a very undesirable proceeding; for such it would be to hold a new in­quest on the body of this person. There is nothing to prevent an indictment against any accused parties, if there be sufficient cause.”


The ground of refusal is clear in that case. The present case differs much. Mr. Floyer, as a Senior District Officer, could sit as a Court under the Native Courts Ordinance and hear certain appeals from Native Court deci­sions; but he could not hear an appeal from a Native Court which had sat with a District Officer as its president. That was what he did; his decision was invalid; the appeal from it to the Governor was dismissed, but that, of course, did not make it valid. The Native Court had decided in favour of the plaintiffs on their claim for a declaration of title to certain lands and granted an injunction; Mr. Floyer decided that parts of the lands in dispute had been owned in common by both parties and, setting aside the judgment of the Na­tive Court, made a division between the parties indicating a boundary, and restrained the parties by injunction from trespassing beyond that line. His decision and that of the Governor are detrimental to the plaintiffs. The pre­sent case is by no means similar to that of In re Daws.


Mr. Somiari, for the Governor, concedes that Mr. Floyer acted without jurisdiction.


Mr. Balonwu, for the other respondent, has cited Moore v. Gamgee (1890), 25 Q.B.D. 244, and Broad v. Perkins, 21 Q.B.D., 533. Neither helps his argument. In fact the former is against him; for there is a passage quoted at p. 248 of what Erle, J. had said in an earlier case; the passage is this:-


“Where an inferior Court has not jurisdiction from the be­ginning, a party by taking a step in a cause before it does not waive his right to object to the want of jurisdiction. But jurisdic­tion is sometimes contingent; in such case, if the defendant does not, by objecting at the proper time, his right of destroying the jurisdiction, he cannot do afterwards.”


Cave, J., at p. 246, explained the two senses in which the word “jurisdiction” is used; the learned Judge said:­


“There are two senses in which it may be said that there is no jurisdiction to entertain an action – first, where under no cir­cumstances can the Court entertain the particular kind of action, as in cases within S. 56 of the Act (the County Courts Act, 1888) – that is, libel, slander, seduction, or breach of promise of mar­riage; secondly, there are cases provided for by S. 74, where under certain circumstances leave can be given to bring an action which the Court could not otherwise entertain; in these cases there is no want of jurisdiction over the subject-matter of the ac­tion, but leave is required in the particular case before the Court can entertain the action, and it is an objection, which may be taken to the hearing of the action, that the defendant does not dwell or carry on his business within the jurisdiction, and leave has not been obtained.”


The second class of case is the class of what Erle, J., called “contingent” jurisdiction: we are concerned with the first class, where there is no jurisdic­tion at all. Broad v Perkins (the other case cited by Mr. Balonwu) relates to writs of prohibition. The Mayor’s Court of London heard a libel case in ex­cess of its jurisdiction; after judgment, but before execution, application was made to the Queen’s Bench for a writ of prohibition to restrain that Court from proceeding in the action; and the question was whether the Queen’s Bench had jurisdiction to refuse a writ of prohibition in the particular cir­cumstances of the case, seeing that there had been an excess of jurisdiction. The full Court of Appeal endorsed the view that:­


“Where, however, the defect is not apparent, and depends upon some fact in the knowledge of the applicant, which he had an opportunity of bringing forward in the court below, and he has thought proper, without excuse, to allow that Court to proceed to judgment without setting up the objection, and without mov­ing for a prohibition in the first instance; yet considering the con­duct of the applicant, the importance of making an end of litiga­tion, and that the writ, though of right, is not of course, the Court would decline to interpose, except perhaps upon an irresistible case, and an excuse for the delay, such as disability, malpractice, or matter newly come to the knowledge of the applicant.”


That means that the grant of a writ of prohibition is discretionary; and there may be circumstances, such as the conduct of the applicant, etc. which make it proper to refuse the writ even where there has been excess of jurisdiction. Mr. Balonwu has suggested that the present applicant had submitted to a hearing by Mr. Floyer. But one cannot blame him for appearing before Mr. Floyer. Here it is not a case of a defect which was not apparent but depended upon some fact in the knowledge of the applicant: it is a case of a defect which should have been known to Mr. Floyer, and which the applicant, who could not have the assistance of counsel before him, did not know and could hardly be expected to think of when he found the appeal being taken by a Senior District Officer. There is no good reason for refusing him the redress of certiorari, if certiorari can lie in the case.


Of the cases cited by Mr. Araka, for the appellant, to show that cer­tiorari will lie, there is Reg. v. His Honour Judge Sir Donald Hurst, (1960) 2 ALL E.R. 385, in which Lord Parker, C.J., said at p.389:­


“I am quite satisfied that certiorari will lie against a county court Judge if he has acted without jurisdiction, notwithstanding the sections of the County Courts Act, 1959, to which I have re­ferred.”


Lord Parker cited Ex. p. Bradlaugh (1878) 3 Q.B.D. 509 as the leading case on the matter, where Mellor, J., said:­


It is well established that the provision taking away the cer­tiorari does not apply where there was an absence of jurisdiction. The consequence of holding otherwise would be that a met­ropolitan magistrate could make any order he pleased without question


We are not concerned here with any section in our local law which takes away certiorari similar to the particular sections in the County Courts Acts with which the Queen’s Bench Division was concerned. Ours is a simple case of a Senior District Officer sitting as a court and hearing an appeal without jurisdiction.


Mr. Araka also referred to The Queen v. the Resident, Ogoja Province, ex parte Ihpah Onah of Igogobe, (1957), 2 F.S.C., 30; [19571 SCNLR 41 in which the Federal Supreme Court held that, if on the facts the Resident had acted beyond his jurisdiction in reviewing a judgment out of time, the former Supreme Court (of which the High Courts are the successors) had jurisdiction to entertain the application for an order nisi to show cause why a writ of certiorari should not issue. (Acting beyond one’s jurisdiction, or ex­ceeding it, means the same as acting without jurisdiction.)


It is clear that certiorari lies in the present case, and that it should issue. The appeal is allowed, and it is ordered that the judgments of the Senior Dis­trict Officer dated 18th February, 1955, and of the Governor of the Eastern Region dated 5th August, 1955, in the Uturu Native Court Civil Case No. 41/54, be removed by certiorari into the High Court of that Region and quashed; and the appellant shall have his costs here and below, those here to be thirty-eight guineas and those below to be taxed in the High Court.


UNSWORTH, F.J.:         I concur.


TAYLOR, F.J.:      I concur.


Appeal allowed Certiorari Ordered



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