Foreign Jurisdiction Act, 1890-(Validity of Sect-ion 2(2) of Appeal Protectorate Ordinance (1933) Council, Circuit . 19

The· appellant was convicted of the offence of larceny by a Public Servant by the Circuit Court sitting at Port Loko. It was argued that. as Port Loko is part of the Colony of Sierra Leone, the Supreme Court alone had jurisdiction to try an offence committed there. It was argued that section 2 (2) of the Protectorate Ordinance (1933) was ultra vires in that it purported to treat portion of the Colony as Protectorate. It was also argued that as the title of this Ordinance referred only to the Protectorate, the sections concerning the Colony were null and void as they contravened Art. XV (3) of the Protectorate of Sierra Leone Order in Council dated the 24th of January, 1924, which provided that •• no clause is to be inserted in or annexed to any Ordinance which shall be foreign to what the title of such Ordinance imports ..... "

Held: As Art. 2 of the Order in Council established one and the same Legislative Council for both Colony and Protectorate, it was open to that Council, by Art. 42, to pass an Ordinance which would apply both to Colony and Protectorate.

Held Further: That the technical transgression of Art. XV (3) of the Royal Instructions did not render the Protectorate Ordinance (193:i) null and void. Damodhar Godltan versus Deoram Kanji (I App. Cases 332) quoted and distinguished.

Appeal Dismissed.

A. S. Bodley for Crown.

R. B. Marke for Appellant.

The following joint judgment was delivered :-

KINGDON, C.J., NIGERIA, PETRIDES, C.]., 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 Loko, 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:~, entitle(1 .. 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 .. shall apply to the Protectorate as hereinafter defined", and the definition contained in Sec. 2 (2) of the term Protectorate .. 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 power;; conferred upon His Majesty by the Foreign jurisdiction Act, 1890, and provides by Art. 2, that .. this order shall appeal. 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 proceedings 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" 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" 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. I t 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 in exactitude does not render' the Ordinance void, seeing that Sec. 1 and Sec. 2 (2) show dearly the extent of its territorial application ..

            Six weeks after the proclamation of the Protectorate, the Protectorate Ordinance, 1896, came into force, establishing Court!: 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 proceeds 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 repeale<;l and re-enacted by the Protectorate Ordinance, 1897, Sees. 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 Sees. 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 6 -5 Colony have been consistently trea.ted as Protectorate for judicial and administrative purposes. And Sec. 4 (2) of the Protectorate Ordinance, 1933, provides t-hat "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.