JELR 81465 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1946-49 12 WACA 402-405
Core Terms Beta
due enquiry
sole judge
learned judge
learned trial judge
deposition of chiefs ordinance
jurisdiction of the courts
present case
such matters
trial judge
earlier judgment of this court
enactment of the sub-section
necessary implication
preliminary point
prerogative writs
proper party
such disputes
unconditional ouster of the court
actions of this kind
comparison of the terms of this section
conditions precedent
construction of parts of the sub-section
correct interpretation
different ways
enactment of the amendment
intention of the legislature
judgment of tile court
jurisdiction of the court
merits of the action
precise meaning
present action
question of want of jurisdiction
relevant statutory provision
strict sense
true effect of the words
true purpose of that sub-section
view of the learned judge

 Lewey, J.A. The case is concerned with a dispute as to the person entitled by native law and custom to fill the office of Timi of Ede. The relevant statutory provision dealing with such disputes is sub-section (2) of section 2 of the Appointment and Deposition of Chiefs Ordinance, and it would appear obvious that the true purpose of that sub-section was to establish the Governor as the “sole Judge” in such disputes. In this case, however, doubts have arisen as to the construction of parts of the sub-section, and as to the precise meaning and true effect of the words “after due enquiry and consultation with the persons concerned in the selection “ which occur in the sub- section. More particularly it has become necessary to consider those words in relation to the question as to whether, or in what circumstances, the jurisdiction of the Court can be said to be ousted by the provisions of the sub-section.

It has been argued that the words to which I have referred can be construed in two markedly different ways:- (a) as constituting conditions precedent which the Governor must fulfil before he can act as “ sole Judge” , so that the jurisdiction of the Courts is not ousted unless and until those conditions have been fulfilled; or (b) as being merely directions as to the manner in which the Governor is to proceed in such matters, the unconditional ouster of the Court’s jurisdiction having followed ipso facto from the enactment of the sub-section.

When this action originally came before the trial Judge, the question of want of jurisdiction was raised as a preliminary point, and the learned Judge accepted construction (b) above and dismissed the case on that ground. Against that decision there was an appeal to this Court in November, 1947, when this Court (on which I was not then sitting) took the view that the learned Judge had placed too wide a construction on sub-section (2) of section 2 of the Ordinance, allowed the appeal on the preliminary point, and sent the case back for the Judge to determine the issues, after hearing evidence.

The learned trial Judge then proceeded on the footing that (a) was the correct interpretation and, having found as a fact that there had been no “due enquiry” , he assumed that the requisite jurisdiction still remained with the Court and proceeded to adjudicate upon .the merits of the action which had been brought before him.

With that interpretation by the learned Judge I am unable to agree, and I am of the opinion that construction (b) is the correct one and that the Courts have been deprived by the sub-section of any power to entertain actions of this kind. .It seems to me from the language of the sub-section that the intention of the legislature was clearly to remove, once and for all, Chieftaincy disputes of a certain class from the ordinary course of litigation in the Courts, and to entrust their adjudication to the Governor as the head of the administration. That procedure, which is by no means uncommon in other colonies, was no doubt designed to free the settlement of such disputes from the delays and complexities and possible appeals-which are attendant on an ordinary civil trial in the Courts. It would appear to have been adopted in order to facilitate the expeditious and simple determination of matters which are not, in the strict sense, questions of law or fact but which call rather for a practical knowledge of native law and custom.

Once (b) is accepted as the true construction of the sub-section, it necessarily follows that no proceedings such as the present action can be entertained by the Courts, since the Courts are precluded, not only from determining the issues set out in the pleadings, but also from considering, for the purposes of the action, whether there has or has not been an enquiry within the meaning of the sub-section. If it is held the effect of the sub-section was to transfer jurisdiction unconditionally from the Courts to the Governor, there is an end of the matter.

That is not to say that there remains in the Courts no power to intervene, whether by the prerogative writs or otherwise, in circumstances where application is made to them for relief, as for example, where there has been an alleged refusal or failure to carry out the statutory duties provided for by the sub-section. But such eventualities are far removed from the present case, where the Court has purported to assume jurisdiction in a formal action with pleadings in a matter which is admittedly a “dispute” within the meaning of the sub-section.

In the present case, the learned trial Judge was wrong, in my judgment; in his construction of the relevant provision of the Ordinance and in purporting to adjudicate m an action where he had no Jurisdiction.

It follows that this Court cannot consider and in fact it has not considered the merits of this case, and that the evidence and arguments before the learned trial Judge as to the merits, as to what is necessary to constitute “due enquiry” , and as to whether there has been an enquiry at all are now beside the point.

In these circumstances, the appellant could not succeed on those of his grounds ! of appeal which related to the merits of tile case. Certain of those grounds, however, definitely raised the question of jurisdiction on which this appeal is t now being decided and it is as a result of his appeal that tile proceedings in the Court below are being set aside.

The appeal, therefore, must be allowed. The judgment of tile Court below is set aside and the order for the injunction discharged. Verity, C.J. I have had the advantage of reading the judgment written by my brother Lewey and am in agreement with his conclusions subject to the following observations. I am not of the opinion that sub-section (2) of section 2 of the Ordinance unconditionally ousts the jurisdiction of the Supreme Court so that in no circumstances can proceedings be taken therein relating to the appointment of Chiefs. A comparison of the terms of this section with the provisions of the later Ordinance of 1948, which expressly deprives the Supreme Court of all jurisdiction in such matters, in my view makes clear the distinction which this Court sought to draw between the view of the learned Judge who in the first instance dismissed the action for lack of jurisdiction and the view held by this Court on appeal from that dismissal. In the earlier judgment of this Court it was pointed out that the trial Judge had ruled that the effect of sub-section (2) was:-

“to leave the Governor as sole Judge in the matter and that in no circumstances can the matter be brought under review of the Courts” and this Court then indicated that the learned Judge had

“placed too wide an interpretation upon it by holding that in no circumstances can the matter be adjudicated upon by the Courts “ and added

“The jurisdiction of the Courts is only ousted after due enquiry has been made and consultation with the persons concerned in the selection has been held.”

It is clear that after such due enquiry and consultation the Governor is to be the” sole Judge “and no proceedings of any kind will lie in the Courts to question his decision. In its earlier judgment this Court expressed its opinion that had the law remained as it stood prior to the enactment of the amendment of 1945 the view first expressed by the trial Judge would have been right but that effect “ must be given to that amendment and that by the enactment of the qualifying words of the 1945 amendment the legislature intended that there should be placed upon the Governor's powers as “sole Judge” from which is to be inferred ouster of the jurisdiction of the Courts, a limitation which this Court described, perhaps with no very great felicity, as a’ condition precedent”. The question is, therefore, in the event of this condition not having been fulfilled what is the position? Have the Courts then no jurisdiction to entertain proceedings of any kind by means of which the public or persons interested may seek to ensure that the intentions of the legislature are carried out by the Executive? The Courts have at all times leaned against the ouster of their jurisdiction unless the legislature has expressly or by necessary implication deprived them thereof. In a case such as the present where the ouster of jurisdiction is not express, but is by necessary implication, the Court will interpret that ouster as going no further than the words of the enactment necessarily imply. From that it follows, in my opinion, that when the Governor has not complied with the conditions prescribed by the legislature, it is open to the proper party to come to the Courts and seek the appropriate relief. As to what would be the form of action or what would be the appropriate form of relief it would be for the Court to determine. Where, therefore, as in the present case, it is alleged that no due enquiry had been held it is open to the proper party to come to the Court and, as was held by this Court in its earlier judgment, it is not enough for the Court below to have said the Governor is the sole Judge and this Court has no jurisdiction”. It is for the Court in such circumstances to enquire into the circumstances to ascertain in the first instance whether the conditions necessary in order to enable the Governor to exercise his function of the sole Judge have been complied with, if so to decline jurisdiction, and if not to determine whether the particular proceedings then before it are the right proceedings and whether it can grant the relief sought. These were the issues which were before the Court below and these are the issues which this Court remitted for determination. I speak as*Page 405one who was a party to the earlier judgment of this Court and responsible in part for the terms thereof when I say that I think it is unfortunate that it has proved possible without unreason to read that judgment as implying that, if the Court below should find that no due enquiry had been held, it should forth with proceed to make such enquiry itself, to investigate the merits of the plaintiffs' claim and, if it decided in favour of the plaintiff on those merits, to grant the relief sought.

The only point discussed by this Court on the previous occasion was whether or not the learned Judge had been right to decline jurisdiction altogether upon the evidence then before him. Whether or not the form of action was appropriate or whether or not the remedy sought had been misconceived did not arise either on the grounds of appeal or the argument then before us: This Court did not then consider it necessary to decide a point which had not at that stage been raised. It intended to do no more, and in my view did no more, than hold that the learned Judge had declined jurisdiction on a wrong view of the relevant statute and directed that the case should be remitted for further consideration on the basis that only if the terms of the section had been complied with by the Governor were the proper parties deprived of coming to the Courts for relief. In this circumstance, I must acknowledge that it is not surprising that the learned trial Judge may have felt that he was free to exercise jurisdiction in dealing with the plaintiff's claim on its merits and that having found in his favour granted the relief sought. In so doing I am in agreement with my learned brother that he erred, for although the Supreme Court has in the circumstances jurisdiction to enquire into the matter, the form of action was inappropriate and the remedy sought was misconceived. The writ should therefore have been dismissed and this appeal, I agree, should be allowed.

Blackall, P. I have had the opportunity of reading the two judgments that , have just been delivered. New section 2 (2) of the Appointment and Deposition f of Chiefs Ordinance, 1930, in my view, merely amplifies the former sub-section by enjoining upon the Governor that in discharging his functions under it he shall make due enquiry and consult those concerned in the election. But the Governor remains the sole Judge and I agree with my brother Lewey that even if he should not comply with the requirements of the sub-section this does not confer jurisdiction upon the Courts to decide whether the appointment of a Chief has been made in accordance with native law and custom.

It may be that if the Governor does not fulfil the requirements of the section a Prerogative Writ might issue but even then if it were held that the Governor had not made due enquiry this would not empower the Court to assume the powers vested in the Governor.

In my opinion the present proceedings are misconceived and I agree that the appeal should be allowed.

Appeal allowed.