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SAMUEL BALOGUN PALMER
V.
SIR GEORGE BERESFORD STOOKE AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT FREETOWN, SIERRA LEONE
12TH JUNE AND 26TH AUGUST, 1953
APPEAL NO. 7/53
2PLR/1953/95 (WACA)
OTHER CITATION(S)
2PLR/1953/95 (WACA)
(1953) XIV WACA PP. 333-335
LEX (1953) – XIV WACA 333-335
BEFORE THEIR LORDSHIPS:
FOSTER-SUTTON, P.
COUSSEY, J.A.
KINGSLEY, J.
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BETWEEN:
SAMUEL BALOGUN PALMER – Appellant
AND
1. SIR GEORGE BERESFORD STOOKE
2. THE ATTORNEY-GENERAL OF SIERRA LEONE – Respondents
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ORIGINATING COURT(S)
Appeal from Supreme Court by plaintiff
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REPRESENTATION
Otto I. E. During, with R. W. Beoku-Betts, and A. B. Wellesley Cole — for Appellant
M. C. Mark — for the Respondents
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
ADMINISTRATIVE AND GOVERNMENT LAW:- Order in Council had the heading “Foreign Jurisdiction” — Legal effect and applicability of — The Sierra Leone (Legislative Council) Order in Council, 1951 — Validity in the Colony
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PRACTICE AND PROCEDURE ISSUE(S)
JURISDICTION:- Inherent jurisdiction — How determined
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CASE SUMMARY
The above Order in Council, which has the heading “Foreign Jurisdiction”, was made by the Sovereign “by virtue and in exercise of the powers vested in Him by the Foreign Jurisdiction Act, 1890, and of all other powers enabling Him in that behalf”. The Colony of Sierra Leone is a British Settlement; there is the Protectorate of Sierra Leone besides.
The appellant (plaintiff) sued for a declaration that the above Order was invalid and an injunction to restrain Sir. G. B. Stooke (the Governor) from giving effect to it; after pleadings the defendants filed a motion to dismiss the action as frivolous and vexatious, and the Judge dismissed it summarily under the inherent jurisdiction of the Court. The plaintiff appealed.
Plaintiff argued that the above Order in Council had the heading “Foreign Jurisdiction” and that, as there was another Foreign Jurisdiction Act of 1913, “all other powers” meant powers in respect of Foreign Jurisdiction; and that the Order was invalid so far as the Colony was concerned as not having been made under the British Settlements Act, 1887 (as amended in 1945) which authorises the King in Council to legislate for a Settled Colony.
The Order in Council gave the Protectorate more members in the Legislature than it gave the Colony-without authority, it was argued.
On procedure the appellant argued that on the motion filed the Court could not have dealt with questions of law.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal) that:
1. It was the plain intention of the Order in Council to legislate both for the Protectorate and the Colony, and there being power to legislate for the Colony under the British Settlements Act, this Act was contemplated by the words “and of all other powers enabling Him (viz. the King) in that behalf”.
2. The Court has, apart from rules, inherent jurisdiction to prevent abuse of its process, and rightly stopped this action relating to an Act of State which could not be questioned in Court.
(Note.-The judgment was read by one of the Judges on 26th August, 1955.)
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the plaintiff sought, inter alia, a declaration that the Sierra Leone (Legislative Council) Order in Council, 1951, is invalid, and an injunction restraining the first defendant from continuing to give effect to it in the Colony of Sierra Leone.
After the statements of claim and defence had been delivered a motion was filed by the defendants asking that the action be dismissed on the ground that it was frivolous and vexatious. The motion came on for hearing before Smith, C.J., who took the view that the whole of the plaintiff’s claim was hopeless and should not be allowed to proceed, and, acting under the inherent jurisdiction of the Court, he summarily dismissed the action.
The plaintiff then filed this appeal, which is confined to that portion of the judgment which dismissed his claim for the declaration and an injunction, to which I have already referred, and to the Court’s action in summarily dismissing the claim on the motion instead of allowing the case to go to trial.
The Sierra Leone (Legislative Council) Order in Council, 1951, was made by His late Majesty the King in Council on the 9th April, 1951. It revokes the Sierra Leone (Legislative Council) Order in Council, 1924, and the Sierra Leone (Legislative Council) (Amendment) Order in Council, 1939, and provides that there shall be a Legislative Council in and for Sierra Leone which shall be constituted in accordance with the provisions of the Order.
The original Order in Council contains the words “Foreign Jurisdiction” in the heading and its preamble and enacting clause read as follows:-
“Whereas by the Sierra Leone (Legislative Council) Order in Council, 1924, provision is made for the constitution and powers of a Legislative Council for the Colony and Protectorate of Sierra Leone (hereinafter together called ‘Sierra Leone’)
“And whereas it is expedient to make other provision for the constitution and powers of a Legislative Council for Sierra Leone:
“Now, therefore, His Majesty, by virtue and in exercise of the powers vested in Him by the Foreign Jurisdiction Act, 1890, and of all other powers enabling Him in that behalf, is pleased, by and with the advice of His Privy Council, to order, and it is hereby ordered, as follows:-“
In the Court below and at the hearing of this appeal the Attorney-General conceded that the Colony of Sierra Leone is a British Settlement, and the case was conducted by both sides on that footing.
Counsel for the appellant argued that the Order in Council was made under the Foreign Jurisdiction Act, 1890, to the exclusion of all other power, that the specific Act mentioned in the enacting clause does not exhaust the genus as there is another such Act which was enacted in the year 1913, that the words “and of all other powers enabling Him in that behalf” must be construed as meaning other powers of His Majesty in respect of Foreign Jurisdiction, applying, as he submitted should be done in this case, the ejusdem generis rule, and that the Order in Council in so far as it purports to legislate for the Colony of Sierra Leone, as distinct from the Protectorate of Sierra Leone, is ultra vires and therefore invalid, because the only Act which empowers His Majesty in Council to legislate for a Settled Colony is the British Settlements Act, 1887, as amended by the British Settlements Act, 1945, which is not mentioned in the Order. In further support of this submission, he drew attention to the heading of the Order, “Foreign Jurisdiction”, arguing that it makes it abundantly clear that no other powers were invoked in its making.
I, of course, accede to the well settled principle that where there are general words following particular and specific words of the same nature, the general words are presumed to be restricted to the same genus as the particular and specific words, but taking the citation as a whole, which I think must be done, that is to say the words “Foreign Jurisdiction Act, 1890”. I cannot create a genus out of them, and I am therefore unable to agree that the ejusdem generis rule is applicable.
In any event I am of the opinion that the rule must be subordinated to the more general principle of gathering the intention from a review of the whole of the enactment and giving effect to its paramount object. As I understand the ejusdem generis rule, its object is to give effect to the assumed intention of an enactment and if the whole of the Order in Council is looked at, I think it beyond argument that the intention was to legislate both for the Colony and the Protectorate of Sierra Leone.
“It was not contended that the Order was invalid in so far as it purports to legislate for the Protectorate. That being so, it seems to me that the relevant question which requires to be answered in this matter, as, did His Majesty in Council have the power to legislate for the Colony, and the answer to it is clearly in the affirmative. He had such power under the British Settlements Act, and in my view that Act must be held to have been contemplated by the words” and of all other powers enabling him in that behalf “.
The Order in question provides for a larger number of members of the Legislative Council from the Protectorate than from the Colony, and the appellant’s counsel submitted ” that there is no Act or Authority which enables the Crown to give the Protectorate a majority in the Legislative Council in the Colony of Sierra Leone”. This submission appears to me to ignore the fact that the Order in Council provides for a joint legislature. Moreover the Constitution of the Legislative Council by the Order was, in my view, an Act of State over which the Supreme Court has no jurisdiction. Of the propriety or justice of that Act, neither the Court below nor this Court have the means of forming, or the right of expressing if they had formed, any opinion.
The only matter which remains to be dealt with is the submission made by counsel for the appellant that on a motion such as that filed by the respondents it is not competent for the Court to deal with questions of law, that in the present case, there being no facts in dispute, the correct procedure was to file a motion under Order 21, rule 2, which he submitted is the procedure which should be followed when a dispute involves only questions of law.
In my opinion there is no substance in the submission. It is well settled that the Court has inherent jurisdiction to stay an action which must fail. It is the case that such jurisdiction is not exercised except with great circumspection and unless it is perfectly clear that the action cannot succeed. In the present case I concur with the learned Chief Justice in thinking that the claim, if allowed to proceed, would be bound to fail. This consideration satisfies me that the order dismissing it ought to be sustained, not in pursuance of any Order or rule, but in virtue of the inherent jurisdiction of the Court to prevent abuse of its process.
For the reasons I have given I would dismiss this appeal with costs to be taxed.
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COUSSEY, J. A.
I concur.
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KINGSLEY, J.
I concur.
Appeal dismissed.