Governor's Order under section
121 of the Native
Administration Ordinance-Aapplication
to remove the same into the
Supreme Court for the purpose of
quashing it-Section 35 of
the Native Administration
Ordinance-No jurisdiction.
On an application for a rule
nisi
directed to the Governor, to
show cause why a writ of
certiorari should not issue the
remove an Order made by him
under section 121 of the Native
Administration Ordinance into
the Supreme Court for the
purpose of quashing it, the
Divisional Court refused the
rule on the ground that it had
no jurisdiction.
Held, on appeal, that in making
the Order the Governor was
performing an executive and not
a judicial act, and therefore a
Writ of Certiorari would not
lie. Held, further, that the
Court was expressly debarred
from exercising any jurisdiction
in the matter by section 35 of
the Native Administration
Ordinance.
W. E. G. Sekyi
for the Applicant-Appellant.
A. P. Taylor, Acting
Solicitor-General
for the Respondent. The
following judgments were
delivered :-
KINGDON, c.J. NIGERIA.
This is an appeal from a ruling
of the Divisional Court of the
Central Province sitting at Cape
Coast refusing to grant a rule
nisi directed to the
Governor to show cause why a
writ of certiorari should not
issue to remove into that Court
Order No. 30 of 1932 made by the
Governor on the 9th December,
1932, by virtue of the powers
vested in him by section 121 of
the Native Administration
Ordinance, and the proceedings
011 which the same was founded
for the purpose of quashing the
same.
The rule was refused on the
ground that the Court had no
jurisdiction.
I concur with the view of the
learned Judge in the Court below
that the Court had no
jurisdiction for the reasons he
gave. It is obvious from the
affidavit filed by the applicant
that the proceedings were
instituted for the purpose of
bringing before the Court the
question of the political and
constitutional relations
subsisting according to native
customary law between a
Divisional Chief of the Agona
State of the one part and the
Paramount Chief and the other
Divisional Chiefs of the other
part. The jurisdiction of the
Court to enquire into such a
matter is expressly barred by
section 35 of Native
Administration Ordinance. Such
denial of jurisdiction by the
Legislature will be upheld by
the Court
(Thomas Harrison Odonkor v.
Konar Emmanuel Mate Kole 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."
(!d.
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."
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 10s.
MICHELIN, J.
I concur.
WEBBER, J.
I concur.
