Accra, 8th May 1933.   

 

Suit before a Native Tribunal-Motion before the Provincial Commissioner's Court to transfer the Suit to another Native Tribunal under section 71 of the Native Administration Ordinance -Order made transferring the suit to the Divisional Court­Review of that Order and substitution therefor of an Order transferring the suit to another Native Tribunal-Power to move such an Order on rl3view.

On the 7th October, 1929, the Provincial Commissioner of the Central Province made an Order under section 71 of the Native Administration Ordinance transferring a suit from a Native Tribunal to the Divisional Court. On the 11th of the same month the Commissioner of his own motion, gave notice of his intention to review his Order and on the 2nd of December. 1932, made another Order rescinding his first Order and transferring the suit to another Native Tribunal.

Held (inter alia) on appeal that so long as the Divisional Court was not actually seised of the suit the Provincial Commissioner's power of review: under section 85 of the Native Administration Ordinance remained.

W. E. G. Sekyi for the Plaintiff-Appellant. K. A. Korsah for the Defendant-Respondent. The following judgments were delivered :-

WEBBER, J.

There can be no question as to the power of a Provincial Commissioner to transfer a case from one Tribunal to another, section 71 of the Native Administration Ordinance gives him that power in very clear terms. It is contended, however, that the Commissioner having by order transferred this case to the Divisional Court, he could not review his Order and make an Order of transfer to another tribunal in its stead.

I am of opinion that the order was valid. It is true that the Commissioner made an Order directing a transfer of this case to the Divisional Court, but within four days of that Order he gave notice of his intention to review it. There seems to be no question as to his power of review.

 

 

Appeal Court 8 May. 1933

 

 

27$

272

Osam Dadzie v.

Attorney­General

Kingdon, C.].

 

 

Osam Dadzie v. Attorney-General.

of jurisdiction by the Legislature will be upheld by the Court (Thomas Harrison Odonkor v. Konor Emmanuel Mate Kale and others, P.C. 1874-1928, 37).

Further I am of opinion that the proceedings by way of writ of certiorari are entirely misconceived. In England "The writ of certiorari is the process by which the King's Bench Division, in the exercise of its superintending power over inferior jurisdictions, requires the Judges or officers of such jurisdictions to certify or send proceedings before them into the King's Bench Division, whether for the purpose of examining into the legality of such proceedings or for giving fuller or more satisfactory effect to them than could be done by the Court below." (Short and Mellor's Practice of the Crown Office,'page 14).

" It lies to remove judicial acts only, and not mere ministerial ones, whether founded or not on a judicial act."

(Id. page 40). Whilst a wide interpretation has been given to the terms" inferior jUrIsdiction" and" judicial act," there is nothing to suggest that it could possibly go so far as to uphold the contention that the Governor exercising the powers conferred upon him by section 121 of the Native Administration Ordinance constituted an "inferior jurisdiction" or that an order made by him under that section was a " judicial act."

c~

In making the order which it is sought to quash the Governor was clearly acting in his executive capacity, and his act was purely an executive one and in no sense a judicial act.

Therefore a writ of certiorari will not lie.

For these two reasons, namely, first that the Court below was right in holding that it had no jurisdiction, and secondly that the proceedings by way of writ of certiorari are misconceived, I am of opinion that this appeal cannot succeed.

The appeal is dismissed with costs assessed at £27 lOs.

MICHELIN, J.

I concur.

WEBBER, J.

I concur.