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IN THE MATTER OF ORDER NO. 30 of 1932 MADE BY THE GOVERNOR UNDER SECTION 121 OF THE NATIVE ADMINISTRATION ORDINANCE
OSAM DADZIE VI, OHENE OF ABODOM
V.
THE HONOURABLE THE ATTORNEY GENERAL
WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST (GHANA)
8TH DAY OF MAY, 1933
2PLR/1933/9 (WACA)
OTHER CITATION(S)
2PLR/1933/9 (WACA)
(1933) I WACA PP. 271-272
LEX (1933) – I WACA PP. 271 – 272
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BEFORE THEIR LORDSHIP(S):
KINGDOM, C.J., NIGERIA
MICHELIN, J.
WEBBER, J.
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BETWEEN:
IN THE MATTER OF ORDER NO. 30 of 1932 MADE BY THE GOVERNOR UNDER SECTION 121 OF THE NATIVE ADMINISTRATION ORDINANCE. OSAM DADZIE VI, OHENE OF ABODOM — Applicant
AND
THE HONOURABLE THE ATTORNEY GENERAL — Respondent
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REPRESENTATION
W. E. G. Sekyi — for the Applicant-Appellant
A. P. Taylor, Acting Solicitor-General — for the Respondent
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ISSUES FROM THE CAUSE(S) OF ACTION
ADMINISTRATIVE AND GOVERNMENT LAW:- Governor’s Order under section 121 of the Native Administration Ordinance — Application to remove the same into the Supreme Court for the purpose of quashing it — Section 35 of the Native Administration Ordinance — How treated
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PRACTICE AND PROCEDURE ISSUES
JURISDICTION:- Quashing of administrative action of government — Jurisdiction of court thereto
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CASE SUMMARY
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. Hold, further, that the Court was expressly debarred from exercising any jurisdiction in the matter by section 35 of the Native Administration Ordinance.
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MAIN JUDGMENT
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 on 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. Konor 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.” (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.”
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.
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MICHELIN, J.
I concur.
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WEBBER, J.
I concur.
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