JELR 81173 (WACA)    
West Africa Court of Appeal  ·  West Africa [For WACA cases]
Other Citations
1939 5 WACA 79-82
Cor. Kingdon, Petrides and Webb, C.JJ.
Core Terms Beta
protectorate ordinance
legislative council
port loko
sierra leone
circuit court
portion of the colony
foreign jurisdiction act
royal instructions
ultra vires
part of the colony of sierra leone
public servant
sierra leone protectorate order
supreme court
title of such ordinance imports
administrative district of port loko
administrative purposes
british government
cases of murder
criminal cases
different matter
different ordinance
foregoing reasons
gold coast
good government
indictable offences
judicial purposes
learned trial judge
port i.oko
portion of the territory
port loko of the offence of larceny
present case
protectorate courts jurisdiction ordinance
short title of the ordinance
such ordinances
supreme court of the colony of sierra leone
term protectorate cc
transfer of the lands of bacca lokkoh
virtue of the protectorate ordinance

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST,AND WEBB, C.J., SIERRA LEONE. . The appellant was tried and convicted by the Circuit Court sitting at Port Loko of the offence of larceny by a Public Servant committed by him at Port Loko. He appeals against his conviction on the ground that, Port Loko being part of the Colony of Sierra Leone, the Supreme Court alone and not the Circuit Court has jurisdiction to try such an offence committed there.

Bacca Lokkoh, a portion of what is now the administrative District of Port Loko, including the town of Port I.oko, was ceded to the Crown in 1825, and it is not disputed that this portion of the territory is Colony, and does not form part of the territories over which a Protectorate was declared in 1896.

In the Colony indictable offences are normally tried by the Supreme Court of the Colony of Sierra Leone (Ord. 39/32 Sec. 2) with a jury; in the Protectorate criminal cases are tried by the Circuit Court with the assistance of Assessors but the decision is vested exclusively in the judge (Protectorate Courts jurisdiction Ordinance, .1932, Sec. 43). Although the town of Port Loko technically forms part of the Colony the learned trial judge held that it is included for administrative and judicial purposes in the Protectorate by virtue of the Protectorate Ordinance, 193:l, entitled.

“ An Ordinance to Consolidate and Amend the Law Dealing with the Mode of Exercising His Majesty’s jurisdiction in the Protectorate.” Sec, 1 gives the short title of the Ordinance and provides that it cc shall apply to the Protectorate as hereinafter defined” , and the definition contained in Sec. 2 (2) of the term Protectorate cc for the purposes of this Ordinance and of any other Ordinance applying to the Protectorate” plainly includes the entire Administrative District of Port Loko.

But the argument for the appellant is that this Ordinance, in so far as it purports to treat a portion of the Colony as Protectorate, ,is ultra vires and should be declared to be void. Power to legislate for the Protectorate is given by the Sierra Leone Protectorate Order in Council, 1924, which recites the powers conferred upon His Majesty by the Foreign jurisdiction Act, 1890, and provides by Art. 2, that ..this order shall apply , to the territories therein specified” not being portions of the Colony of Sierra Leone” , Art. 6 refers to the Legislative Council constituted by the Sierra Leone (Legislative Council) Order in Council, 1924, and Art, 7 gives the Legislative Council power to establish such Ordinances and to constitute such Courts and Officers, and to make such provisions and regulations for the proceeding in such Courts, and for the administration of justice, as may be necessary for the peace, order and good government of the Protectorate” .

Reliance is also placed on Art, XV (3) of the Royal Instructions, dated the 24th January , 1924, which provides that in Ordinances . “Each different matter shall be provided for by a different Ordinance, without intermixing in one and the same Ordinance such things as have no proper relation to each other; and no clause is to be inserted in or annexed to any Ordinance which shall be foreign to what the title of such Ordinance imports. . . ..”

If the Legislative Council constituted for the Protectorate was in any respect different either in composition or procedure from that constituted for the Colony it would be hard to resist the argument that it would not be competent for what we may call the Protectorate Council to legislate for a portion of the Colony, as the Protectorate Ordinance, 1933, undoubtedly purports to do, But the Legislative Council Order in Council, which recites the Foreign jurisdiction Act 1890, and by Art, 2, applies to c, the Colony of Sierra Leone and to the Protectorate of Sierra Leone, which are hereinafter referred to collectively as “ Sierra Leone”, “established one and the same Legislative Council for both Colony and Protectorate, and by Art, 42, gave that Council power cc to make laws for the peace, order and good government of “Sierra Leone.” It would therefore, in our opinion, have been undoubtedly competent for the Legislature to pass an Ordinance, as indeed it frequently does, which would apply both to the Colony and to the Protectorate. The ,question therefore seems to come down to this, whether the fact that Ordinance 32/1933 appears technically to transgress the provisions of Art. XV (3) of the Royal Instructions, in that its title refers only to the Protectorate, renders it null and void in so far as it purports to deal with a portion of the Colony also. In our opinion Art. XV has not this effect. It merely directs that in the making of Ordinances certain rules shall “as far as practicable” be observed. It can hardly be contended that the omission to distinguish an Ordinance by a title, or to divide it into successive clauses or paragraphs numbered consecutively, or to annex to each such clause in the margin a short summary of its contents (Art. XV (1) would have the effect of rendering the Ordinance, or clause, ultra vires and void. It may be that Ordinance 32/1933 should more correctly have been entitled ..An Ordinance to Consolidate and Amend the Law Dealing with the Mode of Exercising His Majesty’s Jurisdiction in the Protectorate and Part of the Colony.” But in our judgment this inexactitude does not render the Ordinance void, seeing that Sec. 1 and Sec. 2 (2) show clearly the extent of its territorial application.

Six weeks after the proclamation of the Protectorate, the Protectorate Ordinance, 1896, came into force, establishing Courts for the Protectorate and it is worthy of remark that a month later there was passed the Protectorate Delimitation Ordinance, 1896, which recites that “certain portions of the Colony are so situated that they cannot be conveniently governed from the seat of Government. ..and it is desirable that they should be placed under the same system of administration as the Protectorate. .. and that it is desirable to define the limits and boundaries within which the jurisdiction for Judicial and Administrative purposes of the Protectorate Ordinance, 1896, should be exercised”. and then proceed to define these limits so as to include (inter alia) the district of Port Loko. Sec. 3 of that Ordinance excludes from the territory so defined the jurisdiction of the Supreme Court of the Colony of Sierra Leone, “except as provided by the Protectorate Ordinance, 1896.” The Protectorate Ordinance, 1896, was repealed and re-enacted by the Protectorate Ordinance, 1897, Secs. 12, 13, 14 and 15 of which limited the- jurisdiction of the Courts of the Colony to cases of murder by a person other than a native, cases transferred by fiat of the Governor, and appeals. The Ordinance of 1897 was in turn repealed and re-enacted by the Protectorate Ordinance, 1901, Sec. 2 (2) of which again defines the Protectorate in a manner which includes in it the District of Port Loko, and Secs. 19 to 23 limit the jurisdiction of the Supreme Court of the Colony.

It thus appears that ever since the proclamation of the Protectorate what may be called the outlying portions of the Colony have been consistently treated as Protectorate for judicial and administrative purposes. And Sec. 4 (2) of the Protectorate Ordinance, 1933, provides that “where any part of the Colony is under the provisions of this Ordinance, included within any such district “, (i.e. a district of the Protectorate), “such part shall become subject to the Ordinances for the time being in force in the Protectorate,... and, save as hereinafter provided, no Ordinance of the Colony, not in force in the Protectorate, shall be applicable thereto”. There follow provisos by which the Governor may by Order in Council take back into the Colony any part of the Colony that is administered as Protectorate, or may make applicable to such part any Ordinance in force in the Colony. The Commission of Inquiry which sat at Port Loko last year, did so in virtue of an Order in Council (No.5 of 1938) issued under this section, and not because the Commission of Inquiry Ordinance was considered to extend to Port Loko.

Reference has been made to the case of Damodhar Gordhan v. Doeram Kanji (1 App. Cases 332). What that case decided was that a territory, which had been ceded to the British Government, could not be transferred from ordinary British jurisdiction. resting upon British Statutes, with a view to the substitution therein of a native jurisdiction under British supervision and control, by the mere authorisation of the Governor-General in Council without a legislative Act. But in the present case the transfer of the lands of Bacca Lokkoh from the jurisdiction of the Supreme Court of the Colony to that of the Courts of the Protectorate was by a legislative Act, namely an Ordinance (or rather a series of Ordinances), which in our opinion was within the competence of the Legislative Council.

For the foregoing reasons we are of opinion that the decision of the Trial Judge was correct; the appeal is dismissed and the conviction and sentence affirmed.